DISSENTING OPINION.
GRAVES, J.I dissent from the opinión of our brother Lamm in this case. With his well-known versatile pen he has touched most splendidly all questions in the case except the one of the most vital importance, and that question is the right of the plaintiffs to maintain this suit at all. This question is discussed, but in glaringly general terms, leaving the meat and the law of the proposition practically untouched. When we say that he touches in splendid style other questions in the case, we do not mean to pass judgment upon the legal questions involved. We refrain from expressing such an opinion, because if what we think of the question which stands in the doorway of this case, is right, then the consideration of other questions would be mere obiter-ehsii thrown in with the wheat, or mud in what should be the clear waters of jurisprudence. We have at times muddied the waters (State ex rel. v. Hitchcock, 241 Mo. 433), but *724an opinion in a case which, in fact and law,,is no case, adds no light to jurisprudence. We shall, therefore, discuss but the one question, i. e., have these plaintiffs the right to maintain this suit? We think not, and for the several reasons expressed in the succeeding paragraphs.
I. In the $7000 item of this appropriation bill, which the lawmakers direct to be paid to Nolen, the Missouri Waterways Commission, as a commission, has no interest.- Such commission could not use a dollar of it, even if it be granted that Nolen can’t use it. When Sec. 63 of the Appropriation Act of 1911 (Law 1911, p. 18) is read carefully, it will be seen that there is an appropriation of $17,000' divided into two items (1) an item of $7000 to be under the control of and expended by Nolen, and (2) the remainder of $10,000 which may be used by the commission. Under the appropriation the commission could not use a dollar of this $7000, even though we concede that Nolen cannot use it.. Under no circumstances can the commission for its own purpose use more than what is left after deducting from the appropriation the alleged unlawful item.
In other words, if for any reason this appropriation item of $7000 is illegal and void, it was so from the beginning and as to that sum it is as if never appropriated. This item simply remains in the State Treasury as if never appropriated. If it could be said that it reverted at all, it reverts to the State and not to the Waterways Commission. Upon its very face the Appropriation Act expresses the legislative intent of never permitting this sum to pass through the hands of the commission itself. So that financially speaking the commission, as a body, has no interest whatever in this item. If the lawmakers overstepped constitutional bounds in appropriating it as they did, it remains as if never appropriated or segregated *725from the mass of funds in the State Treasury, As to this item the commission has no more financial interest than would the dental board, the barber board, or any other board of the State.
If therefore it he said that the commission as a legal body is maintaining this action upon the theory that it is interested in the particular fund, such contention cannot be sustained.
Suppose w!e take the other side of the case and see how we would come out. Suppose the Missouri Waterways Commission should undertake to expend this $7000 for its own expenses. Suppose Gordon, as Auditor, refused to audit their accounts as against such $7000, and the commission brought mandamus to compel him to audit their expense accounts as against it, would- this or any other court say their permanent writ of mandamus would be granted? We think not, because the law says such part of the appropriation “must be used and is to pay the salary, traveling, hotel, clerical, stenographic, and other expenses of John H. Noleh.” The word used is “must,” which in this connection is mandatory and not directory.
If this court was hearing a mandamus to compel the State Auditor to pay out this $7000 to the commission, in interpreting the statute making the appropriation, in order to get the legislative intent, which is the basic principle of all statutory construction, we would have to consider the whole act, even though it be conceded that a portion of the act is violative of constitutional provisions. *
Black thus states the general rule in his work on Interpretation of Laws (2 Ed.), page 317: “In the construction of a statute, in order to determine the true intention of the Legislature, the particular clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning *726of any of its parts.” And going to the direct point on page 321 he says: “Since the object of reading the statute as an entirety is not to determine the validity of any particular part, but to search out the general legislative meaning, it makes no difference that parts or sections of the act may be unconstitutional and therefore invalid; they may be considered in construing the other provisions of the law, in fact, they should not be disregarded. So, also, where part of an act has been repealed, it must, although of no operative force,, be considered in construing the'rest.” See also cases cited by the author in support of the latter rule.
In fact, there is no other reasonable way of finding the legislative intent as to the valid portion of a measure without considering the invalid portion. The legislative mind operated upon the whole subject of the entire act, and the legislative intent as to any particular portion of the act cannot be fairly gathered without considering the whole. So that in the supposed mandamus case we would, in determining what portion of the $17,000 could be used by the commission itself, have to consider the whole act. When we did, we would be forced to say that there was- no intention upon the part of the Legislature to allow the commission, as a body, to expend this $7000, and that for that reason the commission, as a body, had no interest in the $7000.
For the sake of the argument we may grant it to be true that the commission, as such, may sue as to things in which it has an interest, but that does not, authorize it to sue as to things in which it has no personal interest. I have the right to sue in replevin for a horse, yet if I state upon the face of my papers that I have no interest in or title to the horse, I cannot maintain the suit. So in the case at bar, grant it that the commission has the right to sue in any matter in which they are interestéd, yet they so state their case *727as to show that they have no interest, as a commission, in the subject-matter of this suit. They plead the very statute which we have discussed.
From' this standpoint the ruling of the learned trial judge was right.
II. Point is made by the Attorney-General that the lawmakers did not authorize the Missouri "Waterways Commission to sue or be sued, and some persuasive authority and argument is presented along this line, but with the view we have expressed in our paragraph one, a discussion of this contention can well be omitted. If the Missouri Waterways Commission, as a commission, or as a body, has no interest in the subject-matter of this suit, then the demurrer was properly sustained, even though it be conceded that in proper cases such commission could sue and be sued. The law creating the commission is loosely drawn, its powers and duties more loosely defined, and we therefore desist from duscussing its right to sue in a case where it, as a commission, has a direct interest. It is sufficient to say, as we have said, that in this ease; the petition by it filed shows upon its face that it has no earthly interest in this fund of $7000, the sole bone of contention here.
III. If as a commission the plaintiffs have no right to maintain the suit for want of interest therein, then can they maintain it as taxpaying citizens? We say no in this case, because they have never sued in the capacity of taxpayers. As stated in the beginning, my brother touches this question lightly and only in' generalizations. No attempt is made to analyze the petition. It is assumed that the individual commissioners have sued in a dual capacity, i. e., (1) as a commission or legally constituted body, having a right to sue, and (2) as five individual taxpaying citizens, having a right to sue as such. Such is not the petition *728for injunctive relief -in this case. These five men have not sued in the capacity of individual taxpayers, and if they had their petition would be fatally defective for a misjoinder of parties. As a commission they are suing to preserve the whole fund of $17,000 for their own use. As taxpaying citizens they would be suing to keep $7000 of the funds in the public treasury. In other words, their interests would be diverse. But we need not go further upon this matter. They have not sued as taxpayers, and such is evidently an afterthought lodged in the briefs here after defeat nisi. The trial judge should have a fair show. One case should not be tried below, and another and different case here.
Let us now go to the petition. The skill and ability of plaintiff’s counsel bespeak well-drawn pleadings. We feel that the importance of giving to the trial court a fair consideration of the case which he tried on demurrrer demands a setting out of the material parts of the petition, which parts, as “earmarks,”. characterize the instrument. We shall omit only immaterial portions. Such petition as taken from the files sent here from the circuit court reads:
William K. Kavanaugh, Alexander M. Dockery,
Cyrus P. Walbridge, David W. Hill and Edgar
C. Ellis, Constituting the Missouri Waterways
Commission ........................Plaintiffs, v. In the Circuit Court.
John P. Gordon, State Auditor, ...................Defendant.
Come now the above named plaintiffs and state that they constitute the Missouri Waterways Commission, having been as such duly appointed and commissioned by the Governor of the State of Missouri, and acting as such possessing all the qualifications prescribed by law, and that each of the said plaintiffs is a tax paying citizen of the State of Missouri; that the defendant, John P. Gordon, is the duly elected, qualified and acting Auditor of the State of Missouri.
Plaintiffs further state that under section 11827, Revised Statutes 1909, it is provided that in all cases of accounts audited and allowed against the State and in all cases of grants, salaries, pay and expenses allowed by law, the Auditor shall draw a war*729rant on the Treasurer for the amount due, and that under and by virtue of said statute all accounts against the State on account of salaries and expenses payable out of the State revenue shall be audited and allowed by the Auditor and a warrant drawn therefor on the Treasurer, and that no moneys shall be paid out of the State Treasury on such account except upon such audit and warrant as drawn as aforesaid.
Plaintiffs further state and show to the court that the Legislature of the State of Missouri, constituting the Forty-Sixth General Assembly of said State, did appropriate out of the moneys in the State Treasury not otherwise appropriated chargeable to the State revenue fund, the sum of seventeen thousand dollars to the Missouri Waterways Commission, which said sum not otherwise having been appropriated is available for the purpose of said Missouri Waterways Commission upon vouchers and warrants properly audited and drawn in accordance with law. That in that part of the appropriation bill so appropriating said sum of seventeen thousand dollars for the purpose aforesaid, said General Assembly undertook illegally and in violation of law to limit the use of seven thousand dollars of the sum so appropriated as aforesaid to the payment of the salary, traveling, hotel, clerical, stenographic and other necessary expenses of one John H. Nolen, as special agent of the State and the Missouri Waterways Commission and expert in the work of said commission, five thousand dollars of the same to be used to pay the salary of said John H. Nolen, to be paid in monthly installments, and two thousand dollars of said sum to be used to pay the traveling, hotel, clerical, stenographic and other necessary expenses of the said John H. Nolen, the same to be paid upon vouchers issued by said John H. Nolen and approved by the State Auditor.
Plaintiffs further state and show to the court that said part of said appropriation bill so attempting to limit seven thousand dollars of the said appropriation of the seventeen thousand dollars to the payment of the salary, traveling, hotel, clerical, stenographic and other necessary expenses of John H. Nolen, as aforesaid, is unconstitutional, void and wholly without authority of law, for the following reasons, to-wit:
Here follow the four reasons why the proviso above mentioned is violative of constitutional provisions, and the petition proceeds:
Plaintiffs further' state that, constituting the Missouri Waterways Commission, it is their duty to conserve and expend the funds appropriated for the purpose of said commission, to the end that the greatest benefit and good may result to the state of Missouri, and to that end the Missouri Waterways Commission has heretofore from time to time requested the said defendant, John P. Gordon, to refuse to audit and approve the vouchers issued by *730said John H. Nolen, on account of -his salary and expenses, as in said part of said appropriation bill attempted to be provided for, on account of the unconstitutionality and illegality of said part of said appropriation bill, but that said John P. Gordon, the’' defendant herein, has refused to accede to the request of the plaintiffs, constituting said board, and has, despite the request of plaintiffs as aforesaid, approved the vouchers issued by said John H. Nolen on the accounts, aforesaid, and the said vouchers so approved up to this time have been paid by the Treasurer of the State of Missouri, and that unless restrained from so doing the said John P. Gordon, Auditor of the State of Missouri, will continue to approve the vouchers so issued, notwithstanding the unconstitutionality and illegality of said part of said appropriation bill, and has advised plaintiffs of his purpose and intention so to do.
Wherefore the plaintiffs, constituting the Missouri Waterways Commission, being remediless by the ordinary processes of law, pray that the defendant, John P. Gordon, be perpetually restrained and enjoined from approving or auditing or allowing the vouchers issued by said John H. Nolen on account of salary or expenses, as in said part of said appropriation bill attempted to be created and allowed, and that the ¡said John P. Gordon, Auditor as aforesaid. be perpetually restrained and enjoined from drawing any warrant or warrants on the Treasurer of the State of Missouri on account of the vouchers drawn or prepared by said, John Hi. Nolen, as attempted to be provided in said part of said appropriation bill and that in the meantime a temporary injunction may De ailowed restraining and prohibiting the said defendant, John P. Gordon, from doing any of the acts aforesaid until the final hearing of this cause, and for ¡such other and further relief in the premises as to the court may seem meet and proper.
Can yon imagine two lawyers of the known ability of plaintiffs’ counsel drawing a petition for taxpaying citizens in these terms. When they entitle their case there is no thought of suing as taxpayers. After setting out the names in the title of the bill in equity, they thus designate the capacity in which they seek redress — “constituting the Missouri Waterways Commission,” not a word about taxpaying citizens; not a word indicating that they were suing in a dual or double capacity. Had they thought of suing in a dual capacity, and lawyer would have said, “Constituting the Missouri Waterways Commission and individually as taxpaying citizens.”
*731But they do not do that. They earmark the capacity in which they sue by saying we sue as “constituting the Missouri Waterways Commission.”
Now let us go to the body of the petition and see the purpose of the suit and from this seek a conclusion as to the capacity in which the parties plaintiff have sued. In one place in the petition it is said:
“Plaintiffs further state that, constituting the Missoiiri Waterways Commission, it is their duty to conserve the funds appropriated for the purpose of said commission, to the end that the greatest benefit and good may result to the State of Missouri and the citizens thereof, and to that end the said Missouri Waterways Commission has heretofore from time to time requested the said defendant, John P. Gordon, to refuse to audit and approve the vouchers issued by said John II. Nolen on account of his salary and expenses..
“Wherefore, the plaintiffs, constihiting the Missouri Waterways Commission, being remediless by the ordinary process of law, pray that the defendant, John P. Gordon, be perpetually restrained.”
How do they sue under the body of their petition? They have answered, and not this court. They say that they sue “constituting the Missouri Waterways Commission,” with a big “M,” a big “W,” and a big “C !” Going further, what is the purpose of the suit? They answer, and this court cannot change their answer. ' They say “it is their duty to conserve the funds appropriated for the purpose of said commission,” and that they as a body, as the commission, sue to the end of conserving the funds ($17,000 — not $10,000) for use by the commission, and no part of it for the use of Nolen. This part of the petition clearly shows that they seek relief as a commission, not as taxpayers. As .taxpayers it could make no difference whether the money was expended by the commission or by Nolen. In either event, as to them as taxpayers, it would *732"be lost. If the $7000 of 'public funds is to be squandered, it little concerns the taxpayers, whether it is squandered by Nolen or the commission. The purpose of the plaintiffs as indicated by their petition is not to stop the use of this $7000 altogether, but to prevent the use of it by Nolen, to the end that they might use it. They say it is their duty to preserve the full $17,000 for the purpose or use of the commission.
■ In another part of the petition it is said:
“Plaintiffs further state and show to the court that the Legislature of the State of Missouri, constituting the Forty-sixth General Assembly of said State, did appropriate out of the moneys of the State Treasury not otherwise appropriated, chargeable to the State Revenue Fund, the sum of seventeen thousand dollars to the Missouri "Waterways Commission, which said sum not otherwise having been appropriated, is available for the purpose of said Missouri Waterways Commission upon vouchers and warrants properly audited and drawn in accordance with law. That in that part of the appropriation bill so appropriating said sum of seventeen thousand dollars for the purpose aforesaid said General Assembly undertook illegally and in violation of law to limit the use of seven thousand dollars of the sum appropriated as aforesaid to the payment of the salary, traveling, hotel, clerical, stenographic and other necessary expenses of one John II. Nolen, . . . Plaintiffs further state and show to the court that said part of said appropriation bill so attempting to limit seven thousand dollars of said appropriation of the seventeen thousand dollars to the payment of the salary, traveling, hotel, clerical, stenographic and other necessary expenses of John H". Nolen, as aforesaid, is unconstitutional, void and wholly without authority of. law, for the following reasons, to-wit.”
*733This again clearly shows that they were suing to preserve intact the full $17,000, for the use of the commission. In fact all the way through the petition runs the one thought of seeking redress for plaintiffs as members of the commission, and not as taxpaying citizens. But let us go to the prayer and see for whom they ask redress. Note the reading: “Whereupon, the plaintiffs, constituting the Missouri Waterways Commission [again we have big letters], being remediless by the ordinary processes of law, pray that the defendant, John P. Gordon, be perpetually restrained,” etc. Who are the plaintiffs without further remedy? Five individuals “constituting the Missouri Waterways Commission.” Not a word about five individuals as taxpayers being without remedy. The gravamen of the charge made in this petition is that the Legislature wrongfully limited the use of $7000 of the appropriation made to plaintiffs, and they seek to remove this limitation to the end that they may use the whole sum. This bespeaks action by them as commissioners and not as taxpayers. Even had they not expressly declared that they sued to “conserve” this fund for their own use, such would be the clear inference to be drawn from the petition.
Not only do we have before us the petition as. we have thus discussed, but with our files is a certified copy of the appeal bond given below. In this they construe their own petition. They do not say that they as individual taxpayers are seeking redress. As such they give no bond. Note the language in the body of the bond. It reads:
“Know all men by these present: That we, William K. Kavanaugh, Alexander M. Dockery, Cyrus P. Walbridge, David W. Hill and Edgar C. Ellis, constituting the Missouri Waterways Commission, as principal, and Herbert S. Hadley, and Sam S. Haley as security, are held and firmly bound unto John P. Gordon, State Auditor, in the sum of five hundred *734and no’ lOOths dollars. ’ ’
The italics are ours, as they have been in other quotations. When they sign the bond it is thus signed.
“William K. Kavanaugh, Alexander M. Dockery,
Cyrus P. Walbridge,
David W. Hill,
Edgar C. Ellis,
Constituting the Missouri Waterways Commission.
By Wm. K. Kavanaugh,
H. S. Hadley,
Sam S. Haley.”
We repeat what we said in the beginning, that it is clear that the idea of this suit being by individual taxpayers is an afterthought put in the briefs here, and one not sustained by the record. The petition nowhere says that they sue as taxpayers. It nowhere seeks a remedy for taxpayers, and no taxpayers pray for any relief. There is but one short clause that even mentions the words “taxpaying citizens” and that short clause we have italicized in the copy made of the petition herein. When the whole context of the petition is considered, this awkwardly placed' clause does not change the character of the petition. There is nothing to show that they sue in that capacity or seek redress in such capacity. Nor by the title or otherwise is it shown that five individuals sought to sue in a dual capacity, if such could be done.
To my mind the' learned trial judge rightfully passed upon the case before him, and our principal opinion passes upon a case which was never before him. In the principal opinion we bverlook .the fact that by trying to “preserve” the full fund of $17,000 for the uses and purposes of the commission, the plaintiffs themselves eliminate the idea of the taxpayers’ interest. Under 'the idea of preserving and expending the whole appropriation of $17,000, the burden as to *735taxpayers is neither greater nor less, whether the whole sum is expended by the commission, or a part of it by Nolen and the remainder by the commission. The commission, as a body, is not a taxpayer. As a commission they own no property. Until they sne as individual taxpayers and not as .members of the commission, they have no standing as taxpayers. This they have not done, and a reading' of their petition so shows.
"We shall go no further. It will be time enough to discuss the right of a taxpayer to enjoin a State officer, when that kind of a petition is before us. Nor is this case on the point discussed ih our point one, governed by the case of State ex rél. Tolerton v. Gordon, 236 Mo. 142. In that case we had a clear legislative intent to appropriate a specified sum to the .game department. The whole sum was appropriated to that department, Here the Legislature makes a gross sum, but divides it into two items. If the lesser item is void for constitutional- reasons, such item has never been appropriated, and leaves as an appropriation only the remainder.
The judgment nisi was right, and should be affirmed.