(dissenting)'..
I cannot agree with the position taken hy the majority in this case, although I think the question presented is exceedingly close, and a decision either way is not to be violently criticized.
I think the holding of the lower court, which is now reversed by the majority here, is the more reasonable and better view to maintain. The opinion written by the circuit judge clearly presents the reasons upon which he based his decision, and I shall set it out and adopt it as my view of the case. But before doing this I desire to discuss more particularly one point, and that is the question as to what is the meaning of the provision that the superintendent shall devote his entire time to the duties of his office; or, in other words, what is meant by “his entire time.”
I think- the provision that he shall devote his entire time to the duties of his office means that he shall devote the whole or entire amount of his time necessary to the full and efficient performance of the duties of his office. More than this would be impracticable, if not impossible. In the present case the time necessary to the full performance of the official duties of the office might be any number of hours per day 'according to the demands of the day, and this demand would constitute the “entire time” meant to be required so as to adequately and competently perform all of the duties of the position. ' -
A. failure on the part of the official to devote his entire time necessary to completely and efficiently perform the duties of the office, regardless of the amount of *539time necessary, would subject the office holder to the charge of failure of duty and removal. Undoubtedly the legislature meant to provide that the officer should devote his entire time necessary to the performance of the duties of his position, and this provision should be given full force and effect.
But under section 26i7 of the Constitution, which is set out in the opinion following, the office holder has always been and is now required to devote his personal time to the performance of the duties of his office, which means that he must devote his entire time necessary to the full and efficient performance of the duties thereof, without specifying any particular amount of time, so that he will have adequately performed all the duties pertaining to the position. Therefore the provision in the act adds nothing to the law as already provided in the Constitution; consequently the veto of it by the Governor amounted to nothing; such veto was not a material alteration of the law; the provision should be treated as surplusag-e in the act. The Holder Case, 76 Miss. 158, 23 So. 643, is obviously not in point. Following is the opinion of the circuit judge, which I approve :
f‘ Chapter 38 of Acts of legislature of 1920' contains the appropriation for the State Charity Hospital for the years 1920 and 1921. Its first section is: ‘Be it enacted by the legislature of the state of Mississippi, that the sum of forty-five thousand dollars ($45,000) for the year 1920 and a like amount for the year of 1921, be, and the same is hereby appropriated out of any money in the state treasury not otherwise appropriated, for the support and miaintenance of the State Charity Hospital at Jackson, Mississippi: Provided, that this hospital shall be used only for charity patients: Provided further, that the superintendent shall devote his entire time to the duties of his office.”
*540“Section 2 provides liow the funds appropriated by section 1 are to be drawn and expended. The Govern- or undertook to approve the above act, except that part embraced in the words calling for the entire time of the superintendent, which he disapproved on the ground that it violated section 69 of the Constitution, and this he had no authority to do. State v. Holden, 76 Miss. 158, 23 So. 643.
“The auditor, doubting whether the act so treated by the Governor was operative, wisely refused to issue his warrant for an item attempted to be drawn as provided by section 2, and upon his refusal the petition for writ of mandamus was filed by the superintendent to test the question so raised, and, the attorney general filed a demurrer to the petition, which presents a delicate and interesting question.
‘ ‘ If the 'provision disapproved is a condition to payment of the money appropriated or any part of it, however unreasonable it might appear, or if the words disapproved would create a law, if free fromi constitutional objection, or if the words disapproved could have any effect if approved, or if the legislature reasonably might not have passed the bill without the disapproved words, the demurrer should be sustained, as the Governor has no power to amend or alter an act by striking out any of its parts, whether valid or invalid, except items in an appropriation bill, as provided by section 73 of our Constitution. State v. Holder, supra.
“The appropriation for salaries and repair of the Industrial Institute and College for 1808 and 1899 contained the provision that no part of the money appropriated should be available unless the board of trustees should first adopt certain stipulated rules and by-laws, and this stipulation on which the appropriation was suspended, the Governor disapproved and attempted .to approve the bill in all other respects. Under this act, if the bill had been approved as passed, no money *541could hare been lawfully paid unless it was first made to appear that the condition has been met.
“In the 1920 appropriation bill for support and maintenance of the State Charity Hospital there is no condition precedent to payment. The mpney could not be lawfully withheld, had the bill been approved in full, providing inquiry, whether or not the superintendent devoted his entire time to his official duties. The words ‘Provided further’ in, the act are equivalent to and only mean ‘enacted further,’ and does not make payment conditional upon a showing that the superintendent gave his undivided time to his official duties.
“ ‘It does not necessarily follow because the term “provided” is used (in a statute) that which may succeed it is a proviso, though that is the form in which an exception is generally made to, or a restraint or qualification imposed on the enacting clause. It is the matter of the succeeding words, and not the form, which determines whether it is or not a technical proviso.’ Carroll v. State, 58 Ala. 396.
“ ‘The word “provided” is often used in a statute as a conjunction to an independent paragraph.’ Carter v. United States, 143 Fed. 256, 74 C. C. A. 394; Georgia Railroad Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377.
“If the legislature had passed a separate act providing only that the superintendent of the State Charity Hospital should devote his entire time to the duties of his office, would such act have any legal effect1? If it would the demurrer should be sustained.
“Attempted legislation that creates no change, and is not enforceable, and which might have been omitted without effect upon persons or property, is not law.
“Section 267 of our Constitution provides: ‘No person elected or appointed to any office or employment of profit under the laws of this state, or by virtue of any ordinance of any municipality of this state, shall hold *542such office or employment without personally devoting his time to the performance of the duties thereof.’
“The only difference in the constitutional provision and the clause of the act of 1920 disapproved is the word ‘entire,’ making the act read, ‘shall devote his entire time to “the duties of his office. ’ Rigidly construed, a performance of such clause is impossible. No officer could survive without time to eat, sleep, and take necessary recreation. Fairly and reasonably construed, the constitutional provision is as broad as the attempted legislation.
“If the legislature attempted to prevent the superintendent from engaging in the practice of his profession beyond administering to charity patients, then they entered upon a field already covered by the Constitution. Fairley v. Western Union Tel. Co., 73 Miss. 6, 18 So. 796.
“The most that can be said! of the provision under consideration is that it presents the legislative view as to the duties imposed upon the superintendent, and, as it creates no law and provides no penalty or provision for removal from office, it has no more force than a joint resolution to that effect.
“It is certain that the legislature would not have abandoned this institution and neglected to make provision for it unless the paragraph disapproved remained in the act, in view of the necessities of the case (Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692), and in view of the fact that what they inserted in the bill was a part of the Constitution that they could neither add to nor substract from.
“There is no difference in law between the bill as passed and that approved and put into effect.”