[579] ON APPELLANT'S MOTION FOR REHEARING OR TO TRANSFER TO COURT EN BANC. In appellant's motion for rehearing or to transfer to Court en Banc, it is stated that our opinion overlooked the case of State ex rel. Tolerton v. Gordon, 236 Mo. 142, 139 S.W.2d 403. We did not overlook that case, nor do we consider it in conflict with our opinion.
In that case, the Legislature of this State made an appropriation for the Game and Fish Department with a proviso that none of the money therein appropriated should be paid out so long as the then Game and Fish Commissioner remained in office. Tolerton was the Game and Fish Commissioner when the appropriation act was passed. He brought a mandamus action to compel the State Auditor to audit and issue warrants for his salary and expenses. We held that the proviso in the appropriation act was illegal and issued our writ. The opinion did not discuss the question of the State's liability for his salary, but did say there was no doubt of the power of the Legislature to refuse to make an appropriation for the salary of any State officer, and in such cases the incumbent "has no legal ground of complaint." This, for the reason that our Constitution prohibits payment of any State funds except pursuant to an appropriation by the General Assembly. If the Legislature had not appropriated any salary for the Game and Fish Commissioner, Tolerton had no legal method to enforce the payment of his salary fixed by statute, (State ex rel. Mo. State Board of Agriculture v. Holladay, 64 Mo. 526) but that is far from saying that the State does not owe him the money for his salary, even if it has not provided a method to enforce its payment. This, for *Page 271 the reason the State cannot be sued without its consent. State ex rel. State Highway Commission v. Bates, 317 Mo. 696,296 S.W. 418.
The appellant has failed to distinguish the difference between a legal liability and a method or ability of collecting that liability.
On the other hand, the appellant can be sued to establish a legal liability against it. The case at bar was an action to establish its liability to respondent's assignors. In this case, we are only interested in the question of liability and not the method of enforcing that liability. We are convinced that the defense of exhaustion of the appropriation raised by the appellant is not sound.
Other points raised by appellant in its motions have been considered and found to be without merit.
The motion for rehearing and the motion to transfer to the Court en Banc are overruled. All concur.