Whole Court sitting.

The considerations which have impelled me to dissent from the conclusions of the majority of the members of the Court in this case may be stated as follows:

The appellants in their answer to appellee's petition seeking to enforce payment of the sum voted him by the Legislature in the resolution quoted in the majority opinion, denied that the appropriation was to reimburse appellee for monies expended by him while State Treasurer in the discharge of the duties of his office; and affirmatively alleged:

"* * * that all payments made by the said Dishman as Treasurer covering the expenses of the operation of *Page 553 his office from January, 1924, to January, 1928, were made, not from his personal funds, but altogether from and with the monies of the Commonwealth of Kentucky, same having been paid out of said monies of the Commonwealth from the Treasury of the Commonwealth of Kentucky.

"* * * that while he was Treasurer of the Commonwealth of Kentucky from January, 1924, to January, 1928, the said Dishman overspent the appropriations which were made to his department to cover the expenses of the operation of his office, including his own salary, the salaries of his assistants and helpers and other expenses incidental to the conduct of the office. Said expenditures in excess of the amount allowed by law for the operation of his office as aforesaid were as follows: (Here follow items not involved in this controversy.)

"* * * After he was out of office the Commonwealth sued and recovered of him the sums mentioned in the next preceding paragraph because he had expended said sums from the Treasury illegally and without right. The action in which said recovery was had was appealed to the Court of Appeals of Kentucky and the opinion of this Court in said action will be found in 244 Ky. at page 239, 50 S.W.2d at page 504. Said opinion is hereby referred to and made part hereof.

"The judgment which was drawn pursuant to the opinion was paid by Dishman to the Commonwealth of Kentucky on October 26, 1932. The $2,214.91 mentioned in the petition and in the resolution filed with the petition was included in the payment of said judgment. The only money paid to the Commonwealth by the said Dishman was paid in discharge and satisfaction of said judgment and constituted a refund by him to the Commonwealth of Kentucky of monies which he had illegally caused to be paid out of the Treasury of the Commonwealth of Kentucky. The payment of said judgment to reimburse the Commonwealth for money which he had illegally caused to be expended and paid out of the Treasury is the only way and manner in which the said Dishman paid or furnished to the Commonwealth of Kentucky any part of the $2,214.91 mentioned and sued for in the petition herein."

The answer concluded with the assertion that the resolution directing appellee's reimbursement violated Subsection 14 of Section 59, and Sections 58 and 171 of the Constitution of Kentucky. The Chancellor sustained *Page 554 appellee's demurrer to the answer, and upon appellants declining to plead further, rendered judgment in accordance with the prayer of the petition.

As I view the purpose of the resolution, Sections 58 and 171 of the Constitution are not relevant to the controversy, but Subsection 14 of Section 59 on its face is controlling. Section 59 forbids the General Assembly to "pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely: * * *

"Thirteenth: To legalize, except as against the Commonwealth, the unauthorized or invalid act of any officer or public agent of the Commonwealth, or of any city, county or municipality thereof.

"Fourteenth: To refund money legally paid into the State Treasury."

I have included Subsection 13 in the quotation because of appellee's argument that it, and not Subsection 14, controls; and because of appellants reply that Subsection 14 limits the applicability of Subsection 13 to those claims, the validating of which would not involve the refund of money theretofore paid by the claimants into the State Treasury.

Appellee's argument that Subsection 13 authorized the relief attempted to be extended him by the Legislature is predicated largely upon the decisions of this Court in the cases of Carroll v. Bosworth, State Auditor, 151 Ky. 337, 151 S.W. 916; Board of Education of Calloway County et al. v. Talbott, Auditor, 261 Ky. 66, 86 S.W.2d 1059; Pennington v. Shanon, Auditor, 270 Ky. 142, 109 S.W.2d 389.

In the Carroll case we held that the language of Subsection 13 expressly authorized the Legislature to legalize or validate as against the Commonwealth the unauthorized or invalid acts of its officers or agents. In the Calloway County Board of Education case, we held that while the Legislature has power to make an appropriation in recognition of a moral or equitable obligation, "such as a just man would be likely to recognize in his own affairs, whether by law he is required to do so or not" (261 Ky. 66, 86 S.W.2d 1063), it was without power to make such an appropriation when the particular object sought to be accomplished was forbidden by the Constitution. *Page 555 And in the Pennington case, citing the cases referred to, we held that the General Assembly, by resolution, had the power to appropriate money for the benefit of a sheriff who had expended his own funds in returning to Kentucky a criminal extradited from a distant state. As in the Calloway County Board of Education case, the Court held that the Legislature had the power to make an appropriation "for whatever purposes taxes may be laid"; and since the expenditures for which the officer was to be reimbursed by the appropriation were made by him for the benefit of the public, the act of the General Assembly was not violative of Section 171 of the Constitution which prohibits the collection of taxes except for public purposes, or of Section 58 which relates to the auditing and allowance of private claims.

Appellee's argument, based mainly upon the cited cases, may be summarized as follows:

1. The expenditures made by appellee were made for public purposes, since they enabled the Treasurer's office to continue functioning and resulted in no private gain to appellee, whose actions throughout were guided by the utmost good faith. Hence, Section 58 of the Constitution does not militate against the validity of the appropriation.

2. Although the expenditures were not made by appellee from his own funds, the fact which distinguishes this case from the Pennington case, his satisfaction of the judgment requiring him to restore to the State an amount equivalent to the expenditures made from the State Treasury in excess of the appropriation placed him in the same position he would have occupied had he expended his own money in the first instance, as did Pennington.

3. The Legislative act in question was not an act to refund money legally paid into the State Treasury, since "refund," according to the dictionaries, means "to pay back; return, restore, repay"; and the purpose of the Legislature was to recognize and discharge a moral obligation to reimburse appellee for the money he had expended for the Commonwealth's benefit.

I agree with the majority opinion that Section 58 of the Constitution does not invalidate the resolution, since that Section relates to claims of a different type; and, except as to the restraint upon the Legislature's *Page 556 power to relieve him, resulting from his payment of the money into the State Treasury, I agree with his second contention. It should, however, be noted that if he had expended his own money in the first instance, he would not have violated Section 230 of the Constitution which prohibits the withdrawal of money from the State Treasury, "except in pursuance of appropriations made by law," although, since he acted on the advice of the Attorney General in so doing, his violation of Section 230 would not, upon moral grounds, justify the Court in withholding any relief within its power to grant. Nor do I believe that the purpose of the Constitution framers in prohibiting the refund of any money lawfully paid into the State Treasury was punitive. Their purposes were doubtless practical, and designed to prevent favoritism, waste, and confusion. However, if they foresaw an occurrence of events identical with those which gave rise to this litigation, it is possible that Subsection 14 of Section 59 was adopted to discourage public officials from spending unappropriated funds by making it impossible for the Legislature to afford relief after the fact had been adjudicated and the money restored to the State. But, whatever their purpose, I see no escape from the effect upon appellee's present claim of the language employed. The money which he paid into the State Treasury was paid in obedience to a judgment directed to be entered by the State's highest Court, and it is idle to argue, as appellee has by his third contention, that the legislative act, notwithstanding its omission of the word, did not authorize a "refund."

That the rewards of public service in Kentucky are meagre and its hardships many, I am only too well aware. I also realize that our inadvertent statement in the case of Dishman v. Coleman, Auditor, 244 Ky. 239, 50 S.W.2d 504, 508, that "the equity of the case for Dishman addresses itself to the General Assembly" but added to his difficulties and misled that body as to its powers. But the preservation of our form of government demands that constitutional mandates be obeyed, irrespective of the individual hardships which may ensue, and the meaning of the broad language of the clause invoked by the former attorney general to defeat appellee is, to me, unmistakeable.

I am authorized to say that Judges Thomas and Sims join with me in this dissent. *Page 557