¶1 (specially concurring). While I concur in the opinion of my associates, I do not agree with them that it was necessary to go to the length to which they went in expressing their views with reference to the issue in this case. As I view the record, there is but one issue involved, which is whether or not a constitutional officer shall be deprived of his salary fixed by law because the Legislature fails or refuses to make an appropriation therefor sufficient to pay that amount.
¶2 Section 2, art. 10, of the¡ Constitution requires the Legislature to provide by law for an annual tax sufficient, with other resources, to defray- the estimated ordinary expenses of the state for each fiscal year. Under that provision, the amount of taxes is dependent on the expenses of the state. There is no constitutional limitation as to the amount of taxes that may be provided, except by inference that the amount of the taxes shall not exceed the amount necessary to pay the estimated ordinary expenses of the state. While section 9, art. 10, of the Constitution is a limitation on the rate of ad valorem taxation for state purposes, section 12, art. 10, of the Constitution authorizes the levying and collection of various other taxes.
¶3 We must, therefore, start with the premise that it is the duty of the Legislature to provide by law for an annual tax sufficient, with other resources, to defray the estimated ordinary expenses of the state for each fiscal year. The salary of a Justice of the. Supreme Court is a part of the ordinary expenses of the state for each fiscal year. The relator is a Justice of the Supreme Court, and his salary was fixed by law prior to his election to that office. Under the provisions of section 10, art. 23, of the Constitution, the salary to which he is entitled may not be changed after his election and during the term of office for which he was elected, for there was no law enacted prior to his election providing for sucb a change. However, it is contended in this case that the writ prayed for should not issue because the Legislature did not make an appropriation for the payment of his salary in an amount sufficient to pay the statutory amount thereof, and the entire defense is based on the provisions of section 55, art. 5, of the Constitution. The provisions of that section must be construed in connection with the provisions of other sections of the Constitution, included in which is section 12, art. 6, of the Constitution. Under those provisions, every bill passed by the Legislature making appropriations of money embracing distinct items shall, before it becomes a law, be presented to the Governor for his approval, and it is therein provided that any item or items thereof disapproved by the Governor shall be void unless repassed by a two-thirds vote according to the rules and regulations prescribed in section 11, art. 0, of the Constitution. When the sections are read together, it is apparent therefrom that if the Governor should disapprove- any item of appropriation for the salary of a constitutional officer, or reduce any item thereof to an amount below the amount fixed by law for the salary of such an officer, and his judgment thereon should be supported by a vote of one-third of the members of either the Senate or the House of Representatives, a constitutional officer would be deprived of the salary to which he is entitled under the law and which the Constitution says may not be changed during his term of office, if the salary of a constitutional officer is dependent upon the periodical enactment of appropriation bills. To so hold would be to hold that the Constitution which provides *278 that the powers of the government shall be divided into three separate departments (section, 1, art. 4) affords a plan by which the Chief Executive and one-third of the members of either the Senate or the House of Representatives may effectively destroy the judiciary department of the government, or require the judiciary to perform its services required by the state to be performed without that compensation to which it is entitled under the law and which the Constitution says shall not be changed during a term of office.
¶4 It is equally true that a majority of either the House of Representatives or the Senate might defeat the constitutional guaranty that the salary of the Governor may not be changed during his term of office, by refusing to make an appropriation for the payment thereof in the amount provided by law. I can give my consent to no such holding.
¶5 It seems to me that the people in adopting the Constitution intended thereby to provide a plan by which constitutional government should be established and continued without any provision by which either of the three departments of government might or could destroy either of the other departments or impede the operation thereof by failing or refusing to make appropriations in the proper amount for the payment of the salaries of constitutional officers which have been duly fixed by law. Especially is that rule applicable to the judicial department of the government, for by section 6, art. 2, of the Bill of Rights, the courts of justice of the state are required to be open to every person, that speedy and certain remedy may be afforded for every wrong and for every injury to person, property, or reputation. Certainly it was not intended that the judges of those courts should be deprived of their salaries because the Legislature failed or refused to make appropriations for the payment thereof.
¶6 As stated by Special Justice CHESNUT, the legislative act in question was an attempt to reduce salaries of six members of this court and the salaries of other officers in order to make the appropriations for the expenses of the state come within the expected or estimated income of the state. In so doing, section 2, art. 10, and section 10, art. 23, of the Constitution were violated. As heretofore stated, it is not the duty of the Legislature to make the appropriations come within the expected or estimated income of the state. It is its duty to provide sufficient taxes to defray the estimated ordinary expenses of the state, and the constitutional guaranty against the changing of the salaries of constitutional officers is as much a part of the Constitution as any other provision thereof.
¶7 I am fully conscious of the economic condition which is said to be the excuse of the Legislature for attempting to do things which the Constitution prohibits, but I cannot believe that an economic condition justifies the violation of the Constitution. That times are hard is no more excuse for the Legislature violating a constitutional provision hy attempting to reduce the salaries of constitutional officers than good times would be an excuse for the Legislature violating the constitutional provision by attempting to increase such salaries. The constitutional provision is as applicable under the one economic condition as it would be under the other.