(dissenting).
I respectfully dissent.
A fundamental rule of statutory construction is that a statute will be sustained when a constitutional construction can be given it .as against an unconstitutional construction urged. Meyer v. Board, 199 La. 633, 6 So.2d 713; Williams v. Department of Highways, La.App. 1 Cir., 92 So.2d *33398, certiorari denied. It is true that the statute presently construed could be interpreted as an appropriation act by considering Section 4 as mandatorily providing that any judgment rendered in favor of the claimant "shall be paid out of the revolving fund established pursuant to [LSA-]R.S. 51:692.9, or by the Treasurer of the State of Louisiana out of any funds belonging to the State not otherwise appropriated.” If so, for the reasons stated in the majority opinion, such a statute would be clearly unconstitutional as an appropriation act.
However, the word “shall”, although usually implying a mandatory duty, also is sometimes used to denote simple futurity.1 Taken as used in the sense of simple futurity or permissiveness in the present statute, Section 4 — complementing the scheme of the act which in Section 1 authorizes suit, Section 2 provides the place of such suit, and in Section 3 provides the delay within which such suit shall be instituted — simply indicates that "if judgment is rendered in favor of the claimant”, it will or may be paid from the penitentiary revolving fund or from other funds of the State. The act being presumed constitutional, I see no need to imply any legislative intent that such funds as “will” be paid, will be done other than in a constitutional manner; that is, after special appropriation by the legislature.
I might add that, as appellee indicates, Section 4 of the present act is an instance of the pro forma provision usually incorporated in authorization suits introduced to comply with Article III, Section 35, Louisiana Constitution, in the version thereof before the 1946 amendment, when it formerly provided: “Whenever the legislature shall authorize suit to be filed against the State, it shall provide a method of procedure and the effect of the judgments which may he rendered therein.” (Italics mine.)
The interpretation presuming that the act in question is constitutional and was' merely intended to be a legislative authorization of suit against the State and that it was not an unconstitutional act is substantiated by the circumstances of this case. These indicate,' in my humble opinion, a specific intent that this act would be specifically an authorization to file suit again 4 *335the State by compliance with Article III, Section 35, Louisiana Constitution, as amended.
Plaintiff-appellee’s earlier suit upon this same cause of action was dismissed specifically because it had not been filed pursuant to legislative authorization to file suit against the State. 229 La. 1, 85 So.2d 10. Thereafter, the present Senate Bill No. 100 of 1956 was introduced on behalf of plaintiff and in due course passed by the Legislature, with the obvious purpose of enabling plaintiff to bring the present suit by waiving the State’s immunity. If the present bill had been intended as an appropriation act, a constitutional requirement is that it be introduced in the State Plouse of Representatives, and I daresay that not only plaintiff’s learned counsel and every member of the legislature, but almost any informed citizen in this State is familiar with the rule that appropriation bills must be introduced in the lower house. This circumstance that the present authorization act was instead introduced in the upper house alone would, in my opinion, indicate an obvious intent that this bill be considered solely as an authorization to file suit against the State and not as an appropriation bill.
And although I think for the above reasons alone the majority opinion of my esteemed brethren falls into error, I am also inclined to believe that the Governor’s veto, however effective it might be as to other portions of the act, would not affect a legislative authorization pursuant to Article III, Section 35, waiving the State’s immunity from suit, such waiver not requiring the concurrence of the Governor. Lewis v. State, 207 La. 194, 20 So.2d 917, Jefferson Lake Sulphur Co. v. State, 213 La. 1, 34 So.2d 331.
For these reasons I do not concur in the majority opinion herein.
. Cf., Black’s Law Dictionary (3rd Ed. 1933) p. 1616 (citations omitted):
“Shall. As used in statutes, contracts, or the like, this word is generally imperative or mandatory. * * * But it may be construed as merely permissive or directory, (as equivalent to ‘may,’) to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense. * * * Also, as against the government, it is to Tie construed as ‘may,’ unless a contrary intention is manifest. * * *
“Although the word usually denotes an obligation, it also implies an element of futurity. * * * (Italics mine.)