dissenting: Instead of holding the defendant liable for expending public funds in excess of the amounts voted by the Legislature as the Trial Court found and ruled, the majority opinion declares his personal liability on a different ground, namely, that of disbursing such funds without having received at the time warrants from the Governor with the advice and consent of the Council.
I submit that this was not fault and that if it was, it could not be found legally causal of the State’s loss.
Section 13 of chapter 14 of the Revised Laws, as amended by Laws 1943, chapter 21, section 2 authorized the sotting apart of such money in the treasury to be working capital as the Governor and Council should deem necessary. As interpreted over a period of years this put all funds of the State on a working capital basis and there were no longer separate funds for working capital and for other purposes. If the statute is in conflict with Article 56 of the Constitution, the defendant who acted in good faith should be protected. “It is in general held that officers are not liable for paying out public money in reliance on an unconstitutional statute where the payment was made in good faith before the law was held unconstitutional.” 43 Am. Jur. 112. To the same effect are: Fergus v. Brady, 277 Ill. 272; Gordon v. Conner, 183 Okla. 82; 60 Harv. L. Rev. 443, 444.
All of the payments in question were covered by warrants from the Governor and Council within periods of two weeks or so. These warrants were prepared by the State Comptroller for execution, the same official who forwarded manifests to the Treasurer’s office with certification that the bills attached and enumerated were proper for payment.
The subject of legal causation has been much discussed in the cases, textbooks and legal periodicals. No one has produced a concise, clear and comprehensive definition of what it is. Edgerton, Legal Cause, 72 U. of Pa. L. Rev. 211. It is generally agreed that it must consist of a cause in fact that is a substantial factor in bringing about harm for which it is just to hold the actor responsible. Restatement, Torts, ss. 9, 431; Labor v. Public Service Co. of N. H., 92 N. H. 256; Johnson v. Railroad, 83 N. H. 350, 359. Under this definition, it is fair to state *386that the mere disbursement of money, although a cause in fact of the loss measured by the excess of payments over fair value received, was not legally causal of the damage suffered. At most the legal cause would be the manner of disbursing, paying without the authority of the executive warrant. This can fairly be described as an omission rather than a commission.
The payments complained of were not a substantial factor in bringing about the damage. It cannot reasonably be said that the loss would not have occurred if the defendant had waited because the warrants did come down within a few days authorizing all payments made. The defendant knew that they would because they were prepared by the same official who certified to him for payment the bills covered. Under these circumstances, it cannot be said that the failure to wait for the warrants was a substantial factor in-the loss due to deficient value received. The omission of the warrant at the time of payment was no cause at all, because the damage would have happened anyway.
It is not just to hold the defendant liable for losses that were bound to take place anyway because of incorrect warrants when his only fault, if any at all, was to anticipate said warrants in accordance with statutory authority (Laws 1943, c. 21, s. 2) and practice sanctioned by the Governor and Council over the years. The only risk that the defendant can justly be said to have taken in paying in anticipation of warrants was that the warrants might not be forthcoming or that they would authorize payments in lesser amounts. This risk did not ripen into loss.
In Lowell v. Massachusetts Bonding & Ins. Co., 313 Mass. 257, the auditor had been expressly instructed not to approve certain claims. The Treasurer made payment without the required approval which it was certain he would never receive.
The majority decision holds the defendant responsible on a theory of liability that has become discredited in this court. “Under the rule announced in Johnson v. Railroad, 83 N. H. 350, 364, the want of an operator’s license was 'causal in the strictest sense’ of any accident in which an unlicensed operator of a motor vehicle was involved. This arose from an interpretation of the statute (then P. L., c. 101, s. 9, now R. L., c. 117, s. 9), making it a misdemeanor for an unlicensed person to operate a motor vehicle on the highway. By the interpretation, civil liability was made to depend solely upon the driver’s possession, or lack of a license.” Mandell v. Company, 94 N. H. 1, 3. Although relief from the principle of the Johnson case was said to *387have been obtained by means of a statutory amendment to P. L., c. 101, s. 9, enacted by Laws 1937, c. 69, rather than by a direct overruling, it is fair to say that this principle has ceased to be law. “It is a matter of common knowledge that the rule in the Johnson case has been freely criticized as unduly harsh and unrealistic.” Mandell v. Company, supra, 3.
Whenever a violation of a statute is claimed to be causal of damages, it is necessary to ascertain the intention of the Legislature in passing the statute. In the circumstances of the Johnson case, it was not the intention of the Legislature, in making it a misdemeanor for an unlicensed person to operate a motor vehicle on the highway, to make him an insurer against all accidents on the highway in which he might be involved and to allow him no recovery regardless of fault. In the present case, it is not a reasonable construction of the Constitution and the statute requiring disbursements by the State Treasurer on executive warrants to make him an insurer against all improper payments where such warrants are lacking. The purpose of the law is additional protection for the State, not to penalize the Treasurer. In not waiting for the warrant, he takes the risk that it will not authorize the payment made; he does not become an insurer that the payments are proper in every respect. Liability as an insurer should not be imposed on anyone without a clear expression of the legislative intent to that effect.