applicants, and, not waiving said demurrer, | party aggrieved may prosecute an appeal also filed a general demurrer to the petition within sixty days by executing bond as reand notice. He also entered a motion to quash the commissioners' report and amended report filed in the county court. In addition to the foregoing action, he also filed exceptions to the commissioners' report and amended report. The special and general demurrer and the motion to quash the commissioners' report and amended report were overruled. Thereafter the circuit court entered judgment dismissing the appeal, basing his action on the fact that H. P. Brown was a nonresident, and, having filed no answer nor exceptions in the county court, his only remedy was by application for new trial in the county court. From that judgment Brown has prosecuted this appeal.

with directions to set aside the order dismiss- | Legislature to contract debts, not exceeding ing the appeal, and for further proceedings $500,000. not inconsistent with this opinion.

5. STATES (§ 115*)-FISCAL MANAGEMENT-tution. DEBTS.

The prohibition does not apply to debts existing at the time the Constitution was adopted, and a former floating indebtedness of the state in excess of $500,000 may be bonded by the Legislature without a vote of the people. [Ed. Note. For other cases, see States, Cent. Dig. § 114; Dec. Dig. § 115.*]

6. STATES ($_ 115*)-FISCAL MANAGEMENTORDINARY EXPENSES OF GOVERNMENT.

The revenues of the state, assessed and in process of collection, may be considered as constructively in the treasury, and may be appropriated and treated as though actually and physically there, and an appropriation of them by the Legislature is not an incurring of an indebtedness within Const. § 49, authorizing the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

money in the treasury at the time shall be made interest-bearing.

[Ed. Note. For other cases, see States, Cent. Dig. § 138; Dec. Dig. § 142.*]

14. STATES (§ 115*)-FISCAL MANAGEMENT DEBTS.

A statute providing that unpaid warrants on the State Treasurer shall bear interest does not create a debt, if it were not otherwise a debt, within the prohibition in Const. § 49. [Ed. Note.-For other cases, see States, Cent. Dig. § 114; Dec. Dig. § 115.*]

15. STATES (§ 142*)-FISCAL MANAGEMENT— OBLIGATION OF STATE Treasurer.

The State Treasurer must pay outstanding warrants in the order of their issue and as the money available reaches the treasury.

[Ed. Note.-For other cases, see States, Cent. Díg. 138; Dec. Dig. § 142.*]

Appeal from Circuit Court, County.

Mandamus by J. W. Newman, Commissioner of Agriculture, Labor, and Statistics, and chairman of the State Board of Agriculture, against Thomas S. Rhea, State Treasurer, to compel defendant to indorse warrants issued by the Auditor of Public Accounts. From a judgment granting relief, defendant appeals. Affirmed.

shall be presented to the Treasurer for redemption, and the funds appropriated for the purpose for which said warrant was issued are exhausted, the Treasurer shall indorse thereon the date of its presentation with the words, 'No funds with which to pay this warrant, and it bears five per cent. interest from this date until called in,' with rant shall thereafter bear interest at the his official signature thereto, and such warrate of five per cent. per annum, payable semiannually." Acts 1910, p. 218. The Treasurer having refused to make said indorsement upon said warrants, Newman, as Statistics, instituted this action on January Commissioner of Agriculture, Labor, and 14, 1913, against Rhea, the Treasurer, praying Franklin for a writ of mandamus commanding him to indorse said warrants, and each of them, as required by law, so that they shall bear interest until paid. Rhea answered giving the specific data relating to the revenue and expenses of the state government for the years 1912 and 1913, up to the time he answered, and the probable income and expenses for the remainder of the year 1913, estimated upon the basis of the income and expenses of preceding years, showing that at the time of the appropriation to the State Fair there were outstanding warrants against the commonwealth amounting to more than $1,000,000; that at the date the Auditor issued said warrants there were outstanding warrants against the state amounting to more than $2,000,000; that at the time of the approval of said act making said appropriation, and continuously thereafter, there had been, and was at the time the answer. was filed, a deficit in the state treasury in excess of $500,000; and that said warrants were void, because at the time they were issued the indebtedness of the commonwealth, created by the Legislature, exceeded the sum of $500,000, the limit provided by section 49 of the Constitution. A demurrer having been sustained to the answer, and the writ of mandamus ordered pursuant to that ruling, Rhea prosecutes this appeal.

James Garnett, Atty. Gen., for appellant. A. J. Carroll and W. W. Crawford, both of Louisville, for appellee.

MILLER, J. This action was brought by the Kentucky State Fair, through J. W. Newman, its chairman, to compel Thomas S. Rhea, the State Treasurer, by a writ of mandamus, to indorse certain warrants issued by the Auditor of Public Accounts, so that they would thereby become interestbearing warrants. Briefly stated, the facts are as follows: By an act approved March 19, 1912, the General Assembly appropriated the sum of $30,000 "out of any money in the treasury and not otherwise appropriated for paying off the present indebtedness of the Kentucky State Fair." Acts 1912, p. 541. On November 12, 1912, the Auditor of Public Accounts issued to the plaintiff, John W. Newman, Commissioner of Agriculture, Labor, and Statistics of the state of Ken[1] Before taking up the principal questucky, who by virtue of his office is chair- tion, however, we will dispose of the prelimiman of the State Board of Agriculture, nary question presented in appellee's conwhich conducts the Kentucky State Fair, tention that, since the duties of the State five warrants upon the State Treasurer, for Treasurer are purely ministerial, he cannot $5,000 each, in payment of $25,000 of said raise the question of the validity of the warappropriation. A warrant for the other $5,- rants; and that he cannot call in question 000 had been previously issued. Chairman the act of the Auditor in issuing them. This Newman presented said five warrants to the question was considered at great length in appellant, Thomas S. Rhea, State Treasurer, the late case of State ex rel. v. Candland, for payment; but Rhea refused to pay any 36 Utah, 417, 104 Pac. 290, 24 L. R. A. (N. of said warrants because the funds avail- S.) 1260, 140 Am. St. Rep. 834, where the able for their payment had been exhausted. court, after reviewing the authorities, sumThereupon the appellee demanded of appel- med up its conclusions as follows: "We think lant that he indorse said warrants as inter- a careful perusal of the authorities will disest-bearing from that date, as provided by close that while some of the cases contain section 3 of the Act of 1910, which reads as general expressions which would seem to infollows: "Whenever any warrant hereafter dicate that an officer in a mandamus proissued by the Auditor of Public Accounts ceeding against himself, requiring him to

the Legislature requires the Treasurer to perform an act which is ordinarily within the line of his duty, but is, in the particular instance, a violation of the Constitution, he is equally bound to refuse performance, although the law under which he refuses to act is constitutional.

The Treasurer does not contend, in the case at bar, that the Legislature did not have the power to direct state warrants to be indorsed as interest-bearing, as it did by the act of 1910, or that the law imposing that duty upon him was not properly enacted; he only claims that at the time the warrants were presented by the appellee, the act had ceased to operate upon him because the indebtedness of the state had exceeded the constitutional limit. As the Treasurer gives a heavy bond, and takes an oath to support the Constitution of the commonwealth, his duties in the present case were more than merely ministerial; and in our opinion he had the right to raise the question as to the legality of the act demanded of him.

do a ministerial act, may not justify his | fers to an unconstitutional enactment of the failure to act upon the sole ground that the Legislature; but if a constitutional act of law directing the act is unconstitutional, the direct question now before us was not really involved in those cases. Where the question whether an officer acting ministerially, who is directly responsible for his official acts, may attack a law in a mandamus proceeding, was actually before the courts, the great weight of authority is to the effect that such an officer may, in such a proceeding, justify his refusal to act upon the ground that the law requiring the act is unconstitutional. The following well-considered cases leave little, if any, room for doubt or controversy upon this question. Van Horn v. State, 46 Neb. 62, 64 N. W. 365; Norman v. Kentucky Board of Examiners, etc., 93 Ky. 537, 20 S. W. 901 [14 Ky. Law Rep. 529], 18 L. R. A. 556; McDermont v. Dinnie, 6 N. D. 278, 69 N. W. 294; Denman v. Broderick, 111 Cal. 97, 43 Pac. 516; Brandenstein v. Hoke, 101 Cal. 131, 35 Pac. 562. When the law requires an officer to act, although the act be ministerial merely, if he is directly responsible for his official acts he may refuse to act, if in his judgment the law is in conflict with some constitutional provision, and, in case proceedings are instituted to coerce him, he may set up the supposed defect in the law as a defense. No other conclusion is permissible if the Constitution is the supreme law, and if legislative acts in conflict therewith are not merely voidable but are absolutely void. A legislative act which is in conflict with the Constitution is stillborn and of no force or effect-impotent alike to confer rights or to afford protection. This general doctrine is adopted by the courts generally and is the doctrine promulgated by the Supreme Court of the United States, as appears from the case of Norton v. Shelby County, 118 U. S. 442, 6 Sup. Ct. 1125, 30 L. Ed. 178, where Mr. Justice Field, in speaking for the court, says: 'An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.' If this be true, how can any officer, who is responsible for his official acts and who has taken the required oath of office that he 'will support, obey, and defend' the Constitution of the state, justify any act which in his judgment is contrary to or is forbidden by the Constitution, and which is in fact so, although the act be required of him by some legislative enactment? The fact that the act required at his hands is merely ministerial does not change the effect so far as the officer is concerned. If the legislative enactment under which he is required to act is in conflict with the Constitution, the Constitution and not the enactment prevails, and the officer must obey the Constitution or violate his oath of office."

are

The decision of the case upon its merits presents a more difficult question, and depends upon the construction to be given section 49 of the Constitution of Kentucky, which reads as follows: "The General Assembly may contract debts to meet casual deficits or failures in the revenue; but such debts, direct or contingent, singly or in the aggregate, shall not at any time exceed five hundred thousand dollars, and the moneys arising from loans creating such debts shall be applied only to the purpose or purposes for which they were obtained, or to repay such debts: Provided, the General Assembly may contract debts to repel invasion, suppress insurrection, or, if hostilities threatened, provide for the public defense." And, although section 50 of the Constitution has no direct bearing upon the question before us, it may profitably be read in connection with section 49. It reads as follows: "No act of the General Assembly shall authorize any debt to be contracted on behalf of the commonwealth except for the purposes mentioned in section forty-nine, unless provision be made therein to levy and collect an annual tax sufficient to pay the interest stipulated, and to discharge the debt within thirty years; nor shall such act take effect until it shall have been submitted to the people at a general election, and shall have received a majority of all the votes cast for and against it: Provided, the General Assembly may contract debts by borrowing money to pay any part of the debt of the state, without submission to the people, and without making provision in the act authorizing the same for a tax to discharge the debt so contracted, or the interest thereon." Section 171 of the Constitution makes it It is true the language above quoted re- the duty of the General Assembly to provide

an annual tax sufficient to defray the expens- of a tax sufficient to pay the principal and es of the commonwealth, in the following interest within 30 years. These provisions, terms: "The General Assembly shall pro- when read together, constitute a sound busivide by law an annual tax, which, with oth- ness rule for the conduct of the state's finaner resources, shall be sufficient to defray ces. It needs no argument to demonstrate the estimated expenses of the commonwealth the soundness of the elementary proposition for each fiscal year. Taxes shall be levied and collected for public purposes only. They shall be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax; and all taxes shall be levied and collected by general laws."

Section 49, supra, is taken bodily from the Constitution of 1850; and although it has thus been standing in the fundamental law of the state for more than half a century, the precise question now presented is before us for the first time.

In speaking of the history of this section in James, Auditor, v. State University, 131 Ky. 170, 114 S. W. 771, we said: "It yet remains to consider the fourth and final contention of appellant, which is that payment of the appropriations claimed would create a debt against the state of more than $500,000 in excess of its revenues, which would be violative of the provisions of sections 49 and 50 of the Constitution. Sections 49 and 50 were a part of the Constitution of 1850. At that time the state was greatly in debt on account of internal improvements, and the proceedings and debates of the convention which framed that instrument prove that the sections in question were adopted for the purpose of restraining the Legislature from further indulgence in reckless investment of the state's money and credit in internal improvements. Looking to the contemporaneous practical construction of these two sections of the Constitution for guidance in arriving at a solution of the questions raised by appellant's final contention, we find that the Legislature has since the adoption of the present Constitution passed like acts to that under consideration appropriating large sums of money to such institutions as appellees, which have been approved by the sinking fund commissioners and other executive boards of the state, and audited and paid by its ministerial officers without doubt or question."

that the state should live within its incomeyear by year. The yearly income can be approximately estimated; and whenever the Legislature concludes to exceed those revenues in its appropriations of money, not only good business methods, but the very terms of the Constitution, which its members have sworn to support, require it to levy an additional tax to meet the additional appropriation. And the fact that section 49 permits the Legislature to contract debts not exceeding $500,000 to meet casual deficits or failures in the revenue does not relieve that body of its constitutional duty, which is based upon the soundest of business principles, of providing, by increasing the tax rate whenever necessary, an annual revenue sufficient to pay the annual expenditure of the state.

[4] But should the Legislature fail in its plain duty under section 171, by refusing to levy any tax whatever, should the state cease to govern? Would its courts of justice and its penal and charitable institutions close their doors? Would its peace officers, for want of support, be compelled to turn the state over to the passions of the lawless and vicious elements? Would the Legislature be incapable of incurring the expense of a session, and therefore be unable to meet, even though the meeting were called for the sole purpose of levying the necessary tax to pay the running expenses of the state? No one would hesitate to answer these questions in the negative. Considerations of this character have necessarily led to the recognition and adoption of certain elementary canons of construction, which are peculiarly applicable to the interpretation of constitutional provisions, and especially to constitutional prohibitions.

Thus, in Hager, Auditor, v. Gast, 119 Ky. 507, 84 S. W. 557, 27 Ky. Law Rep. 131, where the statute provided that the Auditor should draw his warrant for the cost of paving a street abutting upon state land, and [2, 3] In arriving at a proper construction the Auditor declined to do so upon the ground of said section, we must consider the reason that the statute directing the payment was for the provision and the purpose of the con- in conflict with sections 49 and 50 of the vention in adopting it; and in that consid- Constitution, this court said: "Lastly, it is eration it is proper to read, in connection urged that the act is in conflict with sections with section 49, the other provisions of the 49 and 50 of the Constitution which forbid Constitution bearing either directly or in- the General Assembly authorizing any debt directly upon the question. As above point- to be contracted on behalf of the commoned out, section 171 requires the General As- wealth except for certain specified purposes. sembly to provide an annual tax which shall But these sections of the Constitution have be sufficient to defray the ordinary expenses been the organic law of the state since 1851 of the state; section 49 empowers the Legis- (see sections 35 and 36, art. 2, of former lature to contract debts to the extent of Constitution), and under it this court sus $500,000; while section 50 makes a further tained such legislation. Lindsey v. Auditor, provision for the borrowing of money upon 3 Bush, 231; Commonwealth v. Collins, 12