Temple, J., dissenting. I cannot agree with the conclusion of the majority in this case. It seems to be admitted that the contract was void, the law authorizing it unconstitutional, and if this be so, the debt for the services is expressly denounced as unauthorized by the constitution.
The language is: “The legislature shall have no power . ... to pay or to authorize the payment of any claim hereafter created against the state, .... under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void. (Art. 4, sec. 32.)
•So far as I am able to understand the logic of the leading opinion, it is this: The constitution only forbids the payment of claims arising upon contracts made without express authority of law. The word “law” is a very general term, and was not used in any technical sense. It includes all sorts of laws. A void law, or at least a void statute, is in the popular sense some sort of a law. This contract was authorized by a void law, therefore [472]the legislature is not prohibited from paying; therefore the legislature has the power to pay.
Now, in the first place, I deny that there is any common usage or popular sense in which a void statute is spoken of as a law which differs from the use of the words by lawyers or by the courts. We all speak of void laws, unconstitutional statutes, void contracts, void judgments, etc., meaning the things which in some respects appear to be the things named, but which really are not. So if we desire to refer to one of these void instruments to identify it, we might say the contract A or the statute of April 1st, etc. If there be any common usage beyond this and "which is not common to lawyers, I challenge example and evidence of it.
But admitting that even void laws or statutes are sometimes referred to as laws or statutes, that does not meet the necessities of the case. The phrase in the constitution is “ without express authority of law.” Will any one assert that in any use whatever of language, an act is ever said to be authorized by law,'—meaning that it is pursuant to law known to be void ? How. is it authorized if the law be void ? The very words used imply a valid law. An act authorized by law must be a lawful act. Would it not have sounded strange if the convention had used the words “without authority of a valid law,” or had added, “provided a void statute shall be deemed authority of law”?
But waiving all this, and admitting that the contract we have just declared void, because not authorized by law, was authorized by law in the “popular sense,” so that the legislature is not by this constitutional provision expressly prohibited from paying the claim, the difficulty is not ended. It is necessary to find in this negative language, not only no prohibition but an. affirmative grant of power to pay. For there still remains the implied prohibition, that the legislature cannot authorize the payment of a debt created in violation of the [473]constitution. There still remains the admission that the contract was void, 'because not authorized by law.
If it requires authority to show that even without an express prohibition the legislature cannot .authorize the payment of a claim created in violation of the constitution, we have it in Nougues v. Douglass, 7 Cal. 65.
The legislature authorized a contract for a state capítol. Plaintiff took the contract and performed labor u¡ion it, for which he -was entitled, by the terms of his contract, to receive an admitted sum of money. The act was within the general scope of legislative power, but the court held that the legislature could not pay the debt. It was said: —
“If, then, the legislature had no right to create a state debt beyond the limit fixed by the constitution, that body has no constitutional right to tax the people to pay a void debt.....The restriction upon the power of the legislature would be nugatory if the same end could be accomplished by other modes. The evil intended to be prevented ivould still exist, and the injury to the people would be the same. If the power to create the debt is denied, the power to levy taxes to pay it must be equally denied. The power to pay is a necessary incident to the power to tax and they both must stand or fall together.”
And again, let it be admitted that there cannot be found in section 32, article 4, of the constitution, a limitation on the power of the legislature, either express or .implied. Why is not this relief bill a gift within the meaning of section 31, article 4, of the constitution? “ Nor shall it [the legislature] have power to. make any gift, or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation, whatever.” It is admitted that the contract is utterly void; that it imposes no legal liability or obligation upon the part of the state. The state has received, and will receive, nothing from the parties to [474]whom, this money is to be given. True, if the contract had been valid in legal contemplation, the state would have received a consideration in the service performed by reason of the contract, although there was nothing of benefit in it.
Now, a gift is something bestowed without return. If this be not something bestowed without return, what is the thing returned? Can there be any other reason for holding this appropriation not a gift, except that it would be highly inequitable and unjust not to compensate the respondent for services rendered pursuant to an act of the legislature believed to be valid? In other words, the claim is founded upon a moral obligation, which the state ought to recognize and satisfy.
This construction, I submit, virtually repeals sections 31 and 32, article 4, of the constitution. What sense is there in prohibiting the contract, and declaring it void, if the legislature may nevertheless voluntarily perform the contract on the part of the state? What practical purpose is served by forbidding gifts of the people’s money or property, if the legislature can recognize, and discharge a moral obligation? The legislature must be the judge of the moral obligation, and would rarely ever care to make a gift where it could not claim the existence of a moral obligation.
My brothers deny, as I understand the decision, that they hold any such doctrine. I hope this will prevent the decision from being regarded as a precedent upon this question; but will it? I have shown that, disclaim it as they will, such is the real ground of the decision. Our successors will justly claim that it can be sustained on no other theory. This is the excuse for all relief bills. Gan any one deny that the sole purpose of the provisions was to prevent this very legislation?
But I do not care to pursue the subject further. The constitution itself directs how laws shall be made, and of course the law meant must be a law passed as. in the. [475]constitution provided. The whole claim seems to me baseless.
A void contract based on a void law, ratified against the express prohibition of the constitution, constitutes a valid claim against the state.
I do not think it necessary to pass upon the question whether there might not be an unconstitutional statute which would have some effect. We are not now considering such a question as was before the court in Sessums v. Botts, 34 Tex. 335. It might be admitted that the convention adopted sections 31 and 32, article 4, of the constitution, in view of such a rule, and to prevent its application to the cases like that in hand. The rule was there adopted, however, to protect ministerial officers who had obeyed the law before it was held unconstitutional, and to prevent judgment creditors from losing their liens because the officers had obeyed such law. Here the question is simply as to the meaning of two sections of the constitution.