I dissent.
The constitution (art. IV, sec. 31) provides that the legislature shall not have power "to make any gift, or authorize the making of any gift, of any public money or thing of value to any individual." Certain exceptions are provided for, but they only serve to emphasize the prohibition as to everything not within the exceptions. None of them provides for gifts to individuals to assist them in obtaining an education. The language quoted is simple, unambiguous and clear. *Page 175
The act in question (Stats. 1921, p. 967) provides for and authorizes the making of gifts to persons who served in the military forces of the United States in the late war, out of the public money of the state, not exceeding one thousand dollars to any one person, as follows: 1. The paying of the cost of their transportation, once a year, from their respective homes to the university, college or school which they choose to attend to begin or continue their education. 2. The payment of their annual tuition fees, if any, at such institution. 3. The payment of the cost of the "books and supplies" necessary for their education there. 4. The payment of forty dollars a month for each month to any student during his actual attendance upon any day school, to be applied to defray his living expenses.
If this is not the making of gifts of public money to these individuals, nothing could be. It is as clear and unmistakable a violation of the prohibition of section 31 as could be devised.
It is in fact conceded that it is contrary to the above quoted limitation of section 31 upon the legislative power. The claim is that, so far as education is concerned, section 31 is modified and controlled by section 1 of article IX, the article on the subject of education. It reads as follows: "A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement."
It is a well established rule of construction that where a constitution has been prepared by a convention and submitted to the people and adopted as a whole, it will not be assumed that any provision therein was intended to set aside or qualify another provision, unless such intent appears, either expressly or by necessary implication, or unless the inconsistency is so clear that no other conclusion can reasonably be made from the language. No such intent appears and no such inconsistency exists with respect to the two provisions here in question. Section 1 of article IX does not even purport to grant power to the legislature. It imposes on it a duty to encourage the promotion of education in the things therein specifically mentioned. But it directs that this shall be done "by all suitable *Page 176 means." This necessarily implies that it is not to be done except by "suitable means." So understood, it is not contrary to or inconsistent with the prohibition of section 31 above quoted, but is clearly in harmony with it. The meaning is that it shall encourage education by the use of the powers which it has under the other provisions of the constitution. The making of gifts of public money to individuals cannot be considered as a "suitable means" for the promotion of education, because such gifts are expressly prohibited, and because, in the absence of any language to indicate such intent, it cannot be that section 1 of article IX was meant to sanction a violation of any other part of the constitution. For illustration, and to show the length to which such a doctrine would lead, it cannot be supposed that the direction to the legislature to encourage the promotion of education by all suitable means was intended to or does authorize it to promote education by enacting a special law for the assessment of taxes to raise money for educational purposes, contrary to subdivision 10 of section 25, article IV; or a special law exempting property of a private school from taxation (subd. 20); or a special law providing for the management of common schools (subd. 27); or a law authorizing a lottery or gift enterprise to raise money for educational purposes (art. IV, sec. 26); or a law providing for the taking of private property for educational purposes without compensation to the owners (art. I, sec. 14); or, in short, any law transcending any of the other express restrictions upon legislative power found elsewhere in the constitution. Yet there is as much warrant for allowing any of these things to be done as there is for allowing the making of gifts to individuals from public money to enable such individuals to obtain an education with less effort than would be required without such aid.
The suggestion that it would be good public policy to make such gifts for that purpose presents a matter beyond the proper scope of our inquiry. The public policy fixed by the constitution cannot be changed by the legislature, or by the courts, unless they exceed the limits of their own powers. If public opinion has so changed since the adoption of these constitutional provisions in 1879 that it now favors a different policy from that therein fixed and declared, there is only one legitimate method to give effect *Page 177 to such change, that is by amending the constitution so that it will express the present desire of the people, instead of the desire they expressed in 1879.
It may be that in the absence of such declaration of policy in the constitution as it is, and in the absence of any restriction forbidding the making of gifts to individuals, the legislature could lawfully provide for aid to individuals who have served the country in the late war to enable them to obtain an education. But even if it were conceded that such persons had been in the service of the state in the war, such a disposition of public funds is expressly forbidden by section 32 of article IV of the constitution, which declares that "the legislature shall have no power to grant . . . any extra compensation or allowance to any public officer, agent, servant, or contractor, after service has been rendered." (Conlin v. Board, 99 Cal. 21 [37 Am. St. Rep. 17, 21 L. R. A. 474, 33 P. 753]; Molineux v. State, 109 Cal. 378 [50 Am. St. Rep. 49, 42 P. 34]; Taylor v. Mott, 123 Cal. 497 [56 P. 256].) There was no law authorizing compensation by the state for any service of that character at the time the service was rendered. Hence, any compensation now made for such service, still conceding it to have been a service to the state, would be "extra compensation," within the meaning of this section. The proposition that a mere moral obligation, or any obligation not enforcible by law, cannot be made the basis of an allowance of public money to the person or class of persons claiming to be beneficiaries of such obligation is settled beyond question by the decisions last cited.
It is my opinion that however desirable we may believe such a law to be, the court must say that it is unconstitutional and void and that the writ of mandate should be refused. *Page 178