State ex rel. Tolerton v. Gordon

KENNISH, J. This is an original proceeding in this court by mandamus. The relator, Jesse A. Tolerton, is the State Game and Pish Commissioner of this State, and the respondent, John P. Gordon, is the State Auditor. The object and purpose of the suit is to have this court issue its peremptory writ of mandamus requiring and compelling the respondent as such auditor — 154 — to audit and allow two accounts theretofore presented to respondent by relator, which respondent refused to audit or issue warrants for as requested. The issuance of the alternative writ was waived •and the respondent filed his return to the petition. The relator filed a motion to strike out a part of the return and for judgment on the pleading’s. Upon the issues of law thus raised the cause was argued and submitted for decision. It appears from the facts alleged and which stand admitted by the pleadings that on the first day of May, 1911, relator, as Game and Fish Commissioner, presented to respondent, as Auditor, for audit and allowance, two accounts, one for his salary for the month ■of April, 1911, and the other an account for feed purchased for the game birds belonging to the State, kept and in charge of the relator on the State Game Farm. The account for feed was in the sum of forty-seven dollars and ninety-one cents and was contracted, as shown by its date, on the 20th day of April, 1911. Respondent audited and allowed the account for relator’s salary to the 19th of April, 1911, but refused to audit or issue a warrant for any salary after that date or for the account for feed. When the accotmts were presented to respondent he indorsed on the back of the salary account- the following: “Approved and audited in the sum of $131.94, being salary of Game and Fish Commissioner from April 1st, 1911, to April 19th, 1911, inclusive, being day Governor signed and approved House Bill No. 1200. This 1st day of May, 1911. “ John P. Gordon, State Auditor.” And on the account for feed: “Refused to audit for want of an available appropriation to pay same. This 1st day of May, 1911. “John P. Gordon, State Auditor.” — 155 — Respondent made no objection to the correctness of the accounts as authorized by the provisions of the game and fish law under which relator was acting, but-based his refusal to audit them and issue warrants therefor upon the provisions of section 62 of the act known as House Bill No. 1200. Said act is the general appropriation act passed by the General Assembly for the support and maintenance of the institutions of this State for the years 1911 and 1912, and section 62 thereof is the only part of said act making provision for the support of the fish and game department for the years named. [Laws 1911, Sec. 62, p. 18.] This act was approved by the Governor April 19, 1911. Its title and said section. 62 are as follows: “An Act to appropriate money for the support of the state government, the payment of the contingent and the incidental expenses of the state departments, the public printing, and for the payment of certain •other demands against the State, for which no appropriation has heretofore been made, for the years 1911 and 1912, and appropriating money to the various •counties to be used in the construction and improvement of the public roads, with an emergency clause. “Sec. 62. Fish and game commissioner. There is hereby appropriated out of any money in the State treasury belonging to the ‘game protection fund,’ the sum of ninety thousand dollars ($90,000), as follows: For the salary of the game and fish commissioner, five thousand dollars ($5000); for the salaries and traveling expenses of deputies, sheriffs and constables, appointed deputy game wardens as provided in this act, thirty-six thousand five hundred and seventy-five dollars ($36,575): Provided, that not more than one-half of this amount shall be used for any one year; for contingent office expense, such as stationery, telegraphing, telephoning, office supplies and the traveling expenses of the game and fish commissioner, thirty156 eight hundred dollars ($3800); for printing’, one thousand dollars ($1000); for pay of stenographer, eighteen hundred dollars ($1,800); for clerk in the office eighteen hundred and twenty-five dollars ($1825); for the purchase and propagation of game on the game farm, not exceeding five employees, the sum of forty thousand dollars ($40,000); provided that said game and fish warden shall not employ more than sixteen deputies at any one time, said sixteen deputies to be selected one from each congressional district, and the sheriff, or some constable in each county, shall be designated by the warden as deputy for such county and when, detailed to such duties shall receive same compensation as other deputies; provided, that none of the money herein appropriated in this section shall be available or paid so long as the present state game and fish commissioner remains in this office or is in any wise connected with the office of state game and fish commissioner, except the salaries and accounts due at the time of the approval of this act.” The legality of the action of respondent in refusing to audit and issue warrants for the accounts as requested by relator, for the reason that the funds provided for the support of the game department were not available for the payment of the same, is the decisive question in this case. If the last proviso to said section 62,-hereinafter referred to as the “proviso,” is a valid enactment, or, if invalid the entire section is also invalid, the writ should be denied. On the other hand, if the proviso be held invalid and that part of the section making the appropriation be held valid and enforcible notwithstanding the invalidity of the proviso, then relator was entitled to the warrants as requested and the peremptory writ of mandamus should issue. Other points are discussed in the briefs of counsel, as they were at the oral argument, which we shall refer — 157 — to but briefly before taking up what we deem, as above stated, the determinative questions in the case. I. It is contended by relator that: “Article II of Chapter 49, Eevised Statutes 1909, contains the law of this State in reference to the- preservation of fish and game, specifies the salary of the game warden, and provides that it shall be paid out of the game protection fund by warrant drawn by the State Auditor on said fund in the hands of the State Treasurer. When the above act became effective, August >16,A909, it required no further appropriation by the Legislature, or any other body, to pay the salary and expenses incurred by the State Game and Fish Commissioner.” In support of the foregoing proposition relator maintains that the provisions of the game law referred to constitute a continuing appropriation, under which respondent was authorized and it was his duty to issue warrants for such salary and expenses as were properly chargeable to the game protection fund, without any further appropriation for that purpose by the General Assembly as made in section 62 of said House Bill No. 1200. . We cannot agree to that contention. It is provided by section 43, article 4 of the Constitution of this State that: “All revenue collected and moneys received by the State from any source whatsoever shall go into the treasury, and the General Assembly shall have no power to divert the same, or to permit any money to be drawn from the treasury, except in pursuance of regular appropriations made by law.” And by section 19, article 10, that: “No moneys shall ever be paid out of the treasury of this State, or of any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made, or a warrant shall have issued therefor, within two years after the passage of such appropriation act; and every such law, making a new appropriation, or continuing or reviving an appropriation, shall dis — 158 — tinctly specify the sum appropriated, and the object to which it is to be applied, and it shall not be sufficient to refer to any other law to fix such sum or object.”' The language of the foregoing provisions of the-Constitution is clear and explicit and forbids the payment of money from the State treasury “received from any source whatsoever” or “of any funds under its. management” except in pursuance of regular appropriations made by law. Because of this constitutional inhibition we have no difficulty in deciding that in the absence of an appropriation made by the General Assembly for that purpose no funds could be lawfully-paid out of the State treasury for the support and. maintenance of the game department, nor would relator be entitled to the audit and allowance of his accounts for salary and expenses. [See Secs. 11828 and 11836, E. S. 1909; State v. Holladay, 65 Mo. 77; State ex rel. v. Holladay, 66 Mo. l. c. 389; Fusz v. Spaunhorst, 67 Mo. l. c. 268; State ex rel. v. Henderson, 160 Mo. l. c. 213, 214.] In addition to the foregoing citations it should be added that the General Assembly which enacted the game and fish law appropriated out of the State treasury the sum of two hundred thousand dollars, or so much thereof as should be necessary,, from the game protection fund, to meet the expenses of the department for the biennial period therein named, and by so doing gave a legislative construction to the law and the Constitution as to the necessity of a biennial appropriation. [Sec. 72, Laws 1909, p. 535.] II. Neither can we concur in relator’s contention that the proviso is not within the title of the bill as required by section 28, article 4, of the Constitution. While the proviso may have had and doubtless did have an object ulterior to the. subject of the appropriation of money, it is clearly related to that subject and has a sufficiently natural connection therewith as not, to be misleading and as not to conflict with the section — 159 — of the Constitution 'concerning the title of a legislative bill. [Ewing v. Hoblitzelle, 85 Mo. 64; State v. Bixman, 162 Mo. 1; State ex rel. v. Vandiver, 222 Mo. 206.] III. Eespondent asserts the proposition in his brief that: “Eelator is not now and never has been legally appointed and commissioned as Game and Pish .Commissioner,” and insists that by reason of that fact, alone, relator cannot maintain- this action and respondent was warranted in refusing to issue the warrants, and audit relator’s accounts. It is admitted in respondent’s return that relator was appointed and commissioned by the Governor as Game and Pish Commissioner and that since-the 16th day of August, 1909, he has been acting as such officer and discharging the duties of the office. It does not appear that any other person is asserting-adverse title to such office. Under these admitted facts it is settled law that relator’s title to the office cannot be challenged in a mandamus proceeding for his salary. In the case of State ex rel. v. John, 81 Mo. 13, this, court, in harmony with the general law on the subject,, and as tersely stated in the syllabus, held: ‘ ‘ The right to an office cannot be determined in a proceeding by mandamus to compel the payment of salary to a person claiming such office, or in a proceeding to compel the performance of official duty alleged to be obligatory, by reason of the official character of the claimant. In such cases he who has the better prima facie right must be-recognized until, by contesting the-election, or by proceedings in -quo warranto, the rights of the parties are finally determined.” See also State ex rel. v. Draper, 48 Mo. 213; State ex rel. v. May, 106 Mo. 488; State ex rel. v. Rodman, 43 Mo. 256. IV. Eespondent pleads affirmatively in his return facts concerning the adoption of a resolution of the Senate on thé 26th day of January, 1911, to investi — 160 — gate the condition and administration of the affairs and the expenditures of money by relator in the office of Game and Fish Commissioner, also the appointment of a joint committee for that purpose, and sets forth at length the report of the committee sustaining the charges made against relator. It is further alleged in the return that upon the adoption of the report of the committee, the proviso “was incorporated in said section 62 of said bill by amendment, and that said proviso constituted, was and is the one condition which induced the Forty-sixth General Assembly of the State of Missouri to adopt and enact said section 62 and appropriate said moneys therein stated out of the game protection fund. ’ ’ Relator’s motion to strike out part of respondent’s return and for judgment on the pleadings, moves the court to strike out all of paragraphs eighteen to twenty-two, inclusive, being the matter affirmatively pleaded and relating to the appointment and .report of the committee concerning the investigation of the affairs of relator’s office. In the determination of the questions presented in this case facts affirmatively pleaded in the return are of no importance. So far as they afford a reason for the action of the Legislature in the enactment of the proviso they are immaterial. The lawmaking body is not required to furnish a reason for its action. It has been said, “The law itself stands for a reason.” So far as such affirmative facts may be legitimately referred to, in order to ascertain the legislative intent in the enactment in controversy, this court will take judicial notice of the entire legislative proceedings in the course of the passage of the act, whether pleaded or not. Under this well recognized rule, in order to arrive at the legislative intent in passing the appropriation act under consideration and in adding the proviso thereto, this court will take judicial notice of the majority - report of the committee, sustaining the — 161 — charges of misconduct in office against relator, though not pleaded in the return, and under the same rule it will take judicial notice of the report of the minority members of the same committee arriving at a directly opposite conclusion. Y. Relator maintains that the proviso of section 62 of House Bill No. 1200 is illegal and void. Respondent contends that it is valid, but further that if invalid then the entire section falls with it and no legal appropriation exists out of which relator’s accounts can be audited or paid. If either of respondent’s contentions can be sustained the writ must be denied, otherwise it should be issued. There is no doubt of the power of the Legislature to refuse to make an appropriation for the payment of the salary and expenses of any public officer holding office under the Constitution or laws of this State. Neither is there any doubt as to its power to abolish any office not provided for by the Constitution. ' And in either case the incumbent of- the office has no legal ground of complaint. But in this case the Legislature has made an appropriation for the payment of the salary and expenses of the Game and Fish Commissioner, and the funds so appropriated are made available to pay such salary and expenses to any citizen of this State who may hold that office, with the sole exception'that such payment is denied to relator, now holding that office. The question is thus presented whether the Legislature may by a proviso to an appropriation act single out one citizen of this State and deny to him a right and privilege accorded to all others, without clashing with constitutional guaranties. After a careful consideration of the subject, no doubt is- entertained that this proviso is invalid and void. It will be observed that the body or purview of — 162 — said section, in accordance with, the subject of the title of the act, provides for the support and maintenance for two years of the game department of this State, by the appropriation of ninety thousand dollars. In that form it was drafted and introduced by the committee intrusted with the responsible duty of having charge of the appropriation of funds for the support of all of the public institutions of this State, and in that form, without any condition or proviso, it passed the House by an almost unanimous vote. Thus far the bill is what is known as a general law, in that its operation affected the people generally and not one person or persons of a class only. The proviso, which was first added by amendment in the Senate, attempts to suspend the appropriation and render it unavailable so long as relator shall remain in the office of Game and Fish Commissioner or shall be in any manner connected therewith. In singling out relator from the class of persons eligible to hold that office and in making the proviso apply to and exclude him only, by imposing on him a burden not imposed on any other person, the proviso became special legislation in the most pronounced form. If the Legislature may by a proviso render an appropriation unavailable so long as the relator remains in the office referred to, it necessarily follows that it may also make it unavailable so long as any person of the same political party affiliations as the relator remains in or may be connected with that office. It is too plain for argument that such a law or proviso would not be a general law, operating upon the public generally and equally, but that it would be special or class legislation, granting to individuals of one class special privileges denied to those of another class. In 1 Lewis’s Sutherland on Statutory Construction, sec. 199, it is said: “Special laws are those made for individual cases, or for less than a class.” — 163 — Discussing the subject of public, and private or special laws, Potter’s Dwarris at page 53 says: “ ‘ Public acts relate to the public at large, and private acts concern the particular interest, or benefit of certain individuals, or of particular classes of men.’ In a general act, there may be a private clause. So, a statute which concerns the public revenue is a public statute, but some clauses therein, may, if they relate to private persons only, be private; for a statute may be public in one part, and private in another. A general or public act, then, regards the whole community; special or private acts relate only to particular persons, or to private concerns.” In the case of State ex rel. v. Herrmann, 75 Mo. l. c. 353, this court said: “Judge Cooley says: ‘A statute would not be constitutional . . . which should select particular individuals for a class or locality and subject them to peculiar rules, or impose upon them special obligations or burdens from which others in the same class or locality are exempt. . . . Every one has a right to demand that he be governed by general rules, and a special statute which, without' his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases would not be legitimate legislation, but, would be such an arbitrary mandate as is not within the province of free government.’ [Cooley, Con. Lim., 391.] Section 4 does just this prohibited thing. It. selects particular individuals, i. e., notaries whose commissions bear certain dates, from a general class, i. e., all notaries in said jurisdiction, and subjects them to peculiar rules, from which all others in the same class, are exempt. Such a law cannot be otherwise than special, and can justly bear no other name or designation. ” And in the recent case of State ex rel. v. Taylor,. 224 Mo. l. c. 477, a most clear and concise statement of the law upon the subject of special or class legislation — 164 — is found. Speaking for the court, "Woodson, J., said: “The constitutionality of said article 4 of chapter 122 is assailed for the alleged reason that it is a local or special law within the meaning of section 53 of article 4 of the Constitution. In view of the rulings of this court bearing upon that question, we are unable to lend our concurrence to that contention. These laws apply to and govern all persons equally who come within their scope. The test, under our decisions, as to whether a statute is local or general is, if it operates upon all persons alike who come within its scope or range, then it is general, and not subject to the denunciation of said section 53; but, if, upon the other hand, it operates only on a portion of such persons, then it is a special law, and is subject to the inhibition of said constitutional provision. The act here applies to all who are embraced within its provisions. [State v. Etchman, 189 Mo. 648; State ex inf. v. Standard Oil Co., 218 Mo. 1; Coffey v. City of Carthage, 200 Mo. 616.] ” Under the foregoing authorities the proviso under consideration falls directly within the definition of special laws and is expressly prohibited by section 53, article 4, of the Constitution of this State. It may be added that if a proviso such as that under consideration, by which the right to salary for service is denied to one or more persons of a class, can be upheld, then the possibilities of such legislation are at once suggested. In times of high partisan feeling there would be no restraint upon the power of the dominant party to attach to every appropriation for the salaries and expenses of State officers, whether executive or judicial, a proviso making the funds so appropriated unavailable to pay the salaries or expenses of any person of opposite political party allegiance ; and those thus discriminated against would be without redress. And in view of what was attempted by the proviso in judgment, such an assumption is not an extreme case. — 165 — YI. The proviso is invalid upon another ground. It is an encroachment upon the judicial department of Government. Article 3 of the Constitution of this State is as follows: “The powers of government shall be divided into three distinct departments — the legislative, executive and judicial — each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this Constitution expressly directed or permitted.” ^ It is provided by section 4413 of the Revised Statutes of 1909 that: “Every person who shall be convicted of any of the offenses mentioned in the preceding sections of this article shall be forever disqualified from holding any office of honor, trust or profit under the Constitution and laws of this State, and from voting at any election; and every officer who shall be convicted of any official misdemeanor or misconduct in office, or of any offense which is by this or any other statute punishable by disqualification to hold office, shall, in addition to the other punishment prescribed for such offenses, forfeit his office.” An examination of section 62 under consideration makes it plain that the main purpose of the proviso is the removal of the relator from the office of Game and Fish Commissioner. By depriving relator of any compensation for the services which the game law demands he should render, his enforced removal from the office would be as effectually brought to pass as if ordered and enforced by a direct mandate of a court. It is not essential to the capture of a city or fort that it should be stormed or taken by force. The same result may be reached and with equal certainty by cutting off supplies, by maintaining a successful blockade or siege. In the Merchant of Yenice the leading character is made to — 166 — say: “You take my house when you do take the prop that doth sustain my house. You take my life when you do take the means by which I live.” Considering the character of the office of Game and Fish Commissioner and the services required of the incumbent, it is idle to say that cutting off the compensation does not interfere with the right to continue in the office. The body of this section appropriates ninety thousand dollars for the support of the game department. The proviso, if valid, placed it within the power of one man to defeat the purpose of the appropriation and cause the property of the State to perish and be sacrificed should he remain in office. It would be doing an injustice to the Legislature to assume that such a reckless result as the destruction of the State’s property was contemplated. The more reasonable and probable construction of the legislative intent in the enactment of the proviso is that by depriving the relator of compensation it would have the effect of removing him from the office and that another would be appointed in his stead and that the funds appropriated would then be used for the purpose stated in the act. In the case of Reid v. Smoulter, 128 Pa. St. 324, the court passed upon the constitutionality of an act which repealed a law providing for the payment of the salary of an officer without making any other provision for the compensation of such officer. Discussing the question thus presented, the court, l. c. 335, said: ' ‘ The salary first fixed may perhaps be increased or diminished, subject to the restriction of the 13th section of the 3d article of the Constitution, as the Legislature should from time to time see fit to provide, but to repeal the provision for a salary altogether, is to remove the clerk from his office.” See, also, People ex rel. Burby v. Howland, 155 N. Y. 270. In the case last cited, discussing the effect of an act of the Legislature cutting off the compensation of an office, the court said: “When the main purpose of a statute, or of part of a — 167 — statute, is to evade the Constitution by effecting indirectly that which cannot be done directly, the act is to that extent void, because it violates the spirit of the fundamental law.” In State ex rel. Worrell v. Carr, 129 Ind. 44, it appears from the statement of facts that there were two claimants for the same office. The Legislature made an appropriation for the payment of the salary of the office, adding a proviso that the sums appropriated should be paid to William A. Peelle, one of the claimants, “and to no other person or persons.” The court held that as the other claimant was entitled to the office he was entitled to the salary and that the proviso was an attempted adjudication by the Legislature of a person’s title to an office and was therefore void. The court, l. c. 54, said: “The Constitution provides that no person charged with official duties, under one department of state, shall exercise any of the functions of another. [Article 3, section 1.] The part of the law making an appropriation to pay the salary of the chief, and to pay the expenses of the bureau is the exercise of a legislative function; but that portion which declares that said sum shall be paid to Peelle is an attempt to exercise judicial powers by declaring who is the legal chief of the bureau of statistics, and entitled to the salary, and such provision is absolutely void." It is alleged in respondent’s return that among the things found and declared in the report of the committee appointed to investigate the affairs of relator’s office, which report was adopted, was the following: “That relator had used and expended the moneys so appropriated out of said ‘Game Protection Fund’ for improper, unlawful and illegal purposes, and had otherwise been guilty of misconduct in conducting the affairs of the Game and Fish Department.” And it is contended that the proviso “contained in said section 62 of said House Bill No. 1200, was incorporated in said section 62 of said bill by amendment, and that — 168 — said provision, constituted, was and is the one condition which induced the Forty-sixth General Assembly of the State of Missouri to adopt and enact said section 62 and appropriate said moneys therein stated out of the ‘Game Protection Fund.’ ” On the other hand it is stated in the minority report of the same committee, of which this court will also take judicial notice, that: “The satisfactory conduct of this investigation has been seriously interfered with by the rule adopted by the majority members of this committee denying to Mr. Tolerton the right to be present in person or by attorney during the examination of witnesses. Although the resolution called for investigation of serious charges of official misconduct, the privilege of being confronted by the witnesses against him, or subjecting them to cross-examination, a privilege that has always been accorded to persons under such circumstances, was denied to Mr. Tolerton, although persistently requested and insisted upon by him. Yet, notwithstanding the unprecedented, unfair and unfavorable conditions under which this investigation was conducted, no testimony was offered which sustained the truth of the charges referred to in the resolution.” Upon the reports of the investigation of the affairs of relator’s office thus made by the committee it is evident that the Legislature adjudged the relator unfit to hold the office of Game and Fish Commissioner and thereupon adopted the proviso, which, in effect, would remove him from the office. It is unnecessary to argue that it was not within the power of the Legislature, nor even the executive branch of the government, to adjudge relator guilty of unofficial conduct and in effect remove him from office. That power is lodged in the courts and when put in motion the accused must be accorded a hearing and a day in court before he can be legally shorn of his rights as was sought to be done by the legislative proviso before us. The facts of this — 169 — case, in connection with the alleged investigation and the results which followed in the enactment of the proviso, furnish a strong illustration of the wisdom of our Constitution in providing that “no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others.” VII. In attempting to remove relator from the office of Game and Pish Commissioner and to prevent his reappointment to that office, the proviso under consideration is an encroachment of the legislative department of the government upon the constitutional power of the executive. In the case of State ex rel. v. St. Louis, 216 Mo. l. c. 96, this court said: “Appointments to office are in their nature intrinsically executive acts.” And in State ex inf. v. Washburn, 167 Mo. l. c. 696, the court said: “The act of filling a public office by appointment is essentially an administrative or executive act, and, under the Constitution, can be exercised only by an officer charged with the duty of executing the laws. .• . . So much of the Act of 1899 in question as attempts to limit the power of the Governor in making the appointment to a choice of persons nominated by the city central committee of a political party, is an unwarranted encroachment on the Governor’s constitutional powers.” Section 6557 of the Revised Statutes of 1909 expressly confers on the Governor the power and makes it his duty to appoint a Game and Pish Commissioner to hold office for a term of four years. Section 6 of article 5 of the Constitution of this State makes it the duty, not of the legislative, but of the executive department to “take care that the laws are distributed and faithfully executed. ” If in the discharge of a duty imposed both by the Constitution and by the law the executive has exercised his prerogative by appointing — 170 — to the office of Game and Fish Commissioner a person who in his judgment is faithfully performing his official duty, is it within the power of the Legislature to review the action of the executive and paralyze it by providing in an appropriation act that such appointee shall not receive compensation for his services in such office, although any other person may? If so, then the Legislature may designate, in an appropriation act for the payment of salaries, those who shall and those who shall not be entitled to compensation thereunder, and thus hamper the executive, not only in the exercise of the appointing power, but also in carrying out the mandate of the organic law in taking care that the laws are faithfully executed. Under the authorities cited it is clear that such power has not been granted to the lawmaking branch of the government. The Legislature has the undoubted power to make or to refuse to make an appropriation authorized by the Constitution, and it has the power to create or abolish an office when unrestrained by constitutional limitations, but it has not the power to say who shall not be compensated out of an appropriation for the payment for official services rendered, nor to say indirectly who shall be appointed to or removed from the office thus created. VIII. The question remains, does the invalidity of the proviso render void the entire section 62, so that no fund can be said to exist in the treasury against which respondent may audit and allow relator’s accounts ? It is well recognized that a statute may be void in part and the remainder be sustained as a valid and subsisting law. In State ex rel. v. Taylor, 224 Mo. l. c. 474, this court stated the rule as follows: “The law is well settled in.this State that although a statute may be invalid or unconstitutional in part, the part that is valid will be sustained where it can be separated from the part which is void. [State v. Clarke, 54 Mo. — 171 — 17; State ex rel. v. Field, 119 Mo. 593; Ensworth. v. Curd, 68 Mo. 282; State v. Bockstruck, 136 Mo. 335; State ex inf. v. Washburn, 167 Mo. 680.]” In Cooley’s Constitutional Limitations (7 Ed.), page 247, the rule is more fully stated in the language following: “If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the .statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the Legislature intended them as a whole, and if all could not be carried into effect the Legislature, would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus made dependent, conditional or connected must fall with them.” It is apparent that the purview or body of section 62 under consideration can be separated from the proviso and stand as an entirety, complete and independent in itself. The fact that it was drafted by the committee and passed the House, in which it originated, without the proviso, shows that the body of the act was not so dependent on the proviso, as embodying one common purpose only, that the former could not stand alone without the latter. And if that were the only consideration involved in the decision of the point in hand it would be a question of but little dif — 172 — ficulty. However, the fact that the text or body of the act remaining, after a part has been declared invalid, may be complete in itself, is not alone sufficient to sustain it. For if the part held invalid is so connected with the residue of the act as to furnish the inducement or compensation or consideration for the enactment'of the residue and as to warrant the belief that the Legislature intended them as a whole and would not have passed the part remaining had it known the other part would be held invalid, then the entire act must fall. Relying upon this principle of law, respondent contends that the proviso “was and is the one condition which induced the G-eneral Assembly to appropriate the moneys therein named. That the Legislature, without the provision contained in said section, would have made no appropriation and that condition constituted the legislative inducement to make the appropriation.” The questions are thus presented whether the proviso was the inducement for making the appropriation and whether the belief is warranted that the Legislature would not have made the appropriation had it known that the proviso would not be carried into effect. In the consideration of these questions great influence must be given to the duty of the Legislature to make provision for. the support of the public institutions of the State. One of the first and most important questions confronting every form of organized government is that of raising and supplying the necessary funds to' meet the legitimate expenses of government, including the support of those public institutions which enlightened sentiment has deemed essential to the general well-being of the people. Under the genius of our system of government and that from which it was evolved, this function has always been regarded as peculiarly within the province of the lawmaking body. And under our State Constitution the necessity for making such provision for — 173 — carrying on the government of the State, more than any other one cause, makes imperative the biennial convening of the General Assembly. There are many reasons why the Forty-sixth General Assembly must have recognized the importance to the people of the State of making provision for the support of the game department, and the fact that it did appropriate the sum of ninety thousand dollars therefor clearly shows that it did not underestimate the full import of that duty. The last preceding General Assembly had enacted the present game and fish law, and thereby had established an elaborate scheme and an important department of the State for the protection of the wild game and fish of the State and for the propagation of game birds to be distributed among the people. It had authorized the expenditure of two hundred thousand dollars within the period of two years, for carrying out the purposes of the law. Among these purposes was “the buying, shipping, keeping, propagating and preserving of game.” Pursuant to the provisions of that law, as shown by the annual report of the Game and Fish Commissioner for the year 1910, of which the court will take judicial notice, there had been invested the sum of $43,880.85 for game birds and eggs, for renting and equipping a game farm and for shipping and distributing the birds and eggs among the people of the State. This sum, together with the expenses of the game department, and the sum of $35,187.32 remaining in the game protection fund unexpended, had been paid into such fund by the hunters of the State as license fees, and upon the faith of the law which provided that the fees so paid should be set aside and constitute a fund for the payment of the expenses of the game and fish department. These facts show not only the importance of making provision for the support of the game department, but that the money was paid and received under a law which required that — 174 — the funds be used for that purpose. The disastrous consequences which must necessarily have ensued to the property of the State, including the game birds and eggs on hand, as well as the destruction of the fish and wild game throughout the State, if no appropriation had been made for the support of this department, would have been so serious that it cannot be presumed that such a reckless result was contemplated by the Legislature. On the other hand, the invalidity of and failure to give effect to the proviso could not have been regarded as causing grave consequences. The. revenues received, with an exception of no moment, do not'pass through the hands of the Game and Fish Commissioner. He cannot draw any part of the funds from the treasury unless his accounts have been approved and warrants have been issued therefor by the State Auditor and paid by the State Treasurer. In addition, the Legislature must have known that if the facts stated in the majority report of the committee were true, then relator could quickly and certainly be removed from office and punished; and in such case the proviso would be unnecessary. These considerations show of how little consequence was the incumbency of the office by relator, compared with the most serious consequences which must have followed a failure to provide for the support of this department. That the Legislature did not contemplate the failure of the appropriation to support the game department is shown by the fact that no provision was made for suspending the receipt of the large revenues coming into the game protection fund, although the game law expressly provides that such ■revenue shall be used for the support of the game department. These reasons are convincing that the proviso was not the inducement for making the appropriation and in warranting the belief that the Legislature Would not have refused to make the appropriation for this department of the State and have left it unpro — 175 — vided for and permitted the State’s property to be sacrificed had it known that the proviso would not be carried into effect. Two cases, because of the similarity of facts and principles of law involved, are persuasive authority in support of the conclusion arrived at in this opinion, namely, State ex inf. v. Washburn, 167 Mo. 680, and State ex rel. v. Carr, Auditor, 129 Ind. 44. In the Washburn case this court passed upon the constitutionality of an act of the Legislature amendatory of the election law applicable to Kansas City. The act in judgment was intended to secure a bipartisan election board and to that end provided that the three members of the board should be appointed by the Governor, but that one of the three so appointed should be a member of the leading political party opposed to that to which the other two belonged, and should be chosen from a list of three eligible citizens named by the city central committee of such opposed political party. The Governor appointed the three members of the board, and in so doing refused to choose the third member from the list submitted by the city central committee as provided by law, but instead selected as such third member a person not named by the committee. An action was brought to oust from office the third member thus appointed, on the gro.und that he had been selected in violation of the provisions of the. law and therefore was possessed of no valid title to the office. The trial court sustained the proceeding and ordered the respondent ousted, but on appeal to this court the judgment was reversed. This court, speaking through Vallianx, J., held that so far as the act of the Legislature sought to restrain the executive in the selection of the persons to be appointed, it was special legislation and unconstitutional, and that it was also unconstitutional for the reason that it was an encroachment upon the constitutional power of the Governor in making appoint — 176 — ments. The court also held that although the part of the act. providing the manner of making the appointment in order to secure a bi-partisan board was void, the remainder of the act was valid, and the court upheld the appointment made by the Governor contrary to the express requirements of the law. In the case of State ex rel. v. Carr, supra, there were two claimants for the office of chief of the bureau of statistics, Worrell, appointed by the Governor, and Peelle, selected by the Legislature. The Legislature made an appropriation for the support of the bureau of statistics and added a proviso that the funds so appropriated should be paid to “William A. Peele, Jr., and to no other person or persons.” The act also made it a felony for the Auditor to draw a warrant on the fund so appropriated in favor of any other person than as named in the act, and also made it a felony for the State Treasurer to pay the funds so appropriated other than as provided in the act. It was finally decided in the courts that Worrell was entitled to the office of statistician and in a mandamus proceeding ' against the Auditor, for the audit and allowance of his salary, the Supreme Court of Indiana held the proviso of the act invalid, sustained the residue of the act making the appropriation and ordered the peremptory writ to issue. For the foregoing reasons we hold that relator is entitled to the audit and allowance of his accounts and that warrants should have been issued therefor as requested. We therefore sustain the order granting the alternative writ and direct the issuance of a peremptory writ as prayed. Lamm and Ferriss, JJ., concur, Brown, J., concurs except as to paragraph one, from which he dissents; Graves, J., concurs in a separate opinion; Valliant, C. J., dissents in separate opinion in which Woodson, J., concurs; Woodson, J., dissents in separate opinion in which Valliant, G. J., concurs.