maturity. The act of 1846 provides that the certificates shall "be redeemable at the pleasure of the state after twenty years." These provisions clearly express a promise to pay interest on the principal debt after maturity, and that promise is embodied in the certificates. It seems quite clear, therefore, that there is a contract binding the state to pay interest on the principal debt, and until it performs its contract that promise remains valid and enforceable.

The next question which naturally arises is, What rate of interest did the state contract to pay? The law, as we have said, is, that a sovereign is bound to pay only such interest as it binds itself by contract to pay: United States v. North Carolina, 136 U. S. 211; United States v. Bayard, 127 U. S. 251; United States v. Sherman, 98 U. S. 565; In re Gosman, 17 Ch. Div. 771. The contract of a sovereign with respect to the payment of interest is governed by a different rule from that which prevails in cases of contracts of citizens, for where there is no promise to pay interest a sovereign is exempt. We are therefore required to determine what rate the sov ereign agreed to pay; and when that is determined, the rate recoverable is ascertained and fixed. In this instance the only rate mentioned in the statutes or contract is five per centum, and no other can be recovered, since the only rate recoverable is that fixed by the contract. It is probably true that the opinion in the case of Gray v. State, 72 Ind. 567, contains some propositions not easily harmonized with the doctrine of the supreme court of the United States; but however this may be, there is an essential difference between that case and the one now at our bar. One essential difference is, that in this case it appears affirmatively that no coupons were issued for the interest, while in the case referred to there were coupons. Another difference is, that it here appears that thirteen months elapsed without the presentation of the certificates on New York, thus giving the state the right to pay at its own treasury, under the provisions of the act of 1847; and this fact exerts an important influence upon the question. Under these circumstances it seems clear that the interest recoverable is that fixed by the statutes and the contract, for the state undoubtedly had a right to declare what interest it would pay. This it did by providing that the certificates should run for twenty years at five per centum per annum interest, and that after twenty years it might, at its pleasure, redeem them. We can conceive no tenable ground

upon which it can be asserted that the rate of interest increased after twenty years, for it seems clear to us that no matter how long the bonds were allowed to run, the rate of interest was that fixed by the statutes and the contract. Our final conclusion upon this branch of the case is, that the relator is entitled to interest on the principal sum at the rate fixed by the statutes and the contract made under them, but to no more.

The remaining question is this: Is the relator entitled to interest upon interest? The contention of his counsel is, that he is not asking compound interest, but that he is asking interest upon each semi-annual installment of interest which the state failed to pay. This question must be examined in the light of the rule that a sovereign state is not liable for interest except in cases where it has promised to pay interest. If there is no such promise, no liability exists. The authorities to which we have referred seem to us to be satisfactory, and to settle the question against the relator; but we have examined others, and find them strongly against him. In the case of State ex rel. v. Board etc., 36 Ohio St. 409, it was held that in the absence of a promise to pay interest none can be recovered against a state, and that a state is not within the provisions of a general statute providing for the payment. of interest in cases where money is wrongfully withheld from a creditor. The court put its decision upon the familiar rule that a sovereign is not bound by the words of a statute unless it is expressly named, and in support of its conclusion cited these cases: Trustee etc. v. Campbell, 16 Ohio St. 11; Joselyn v. Stone, 28 Miss. 753; State v. Kinne, 41 N. H. 238; AttorneyGeneral v. Cape Fear etc. Co., 2 Ired. Eq. 444; Auditorial Board v. Arles, 15 Tex. 72; State v. Thompson, 10 Ark. 61. In Wightman v. United States, 23 Ct. of Cl. 144, the general rule was stated, and it was said: "Hence there is no law fixing a rate of interest for all classes of the public debt, and a longestablished public policy has been to pay interest only where it is a subject of express agreement or of positive enactment." It was held in the case of Tillson v. United States, 100 U. S. 43, that a statute referring a claim did not authorize a recovery of interest, in the absence of words expressly providing for the payment of interest. It is impossible to escape the effect of these authorities, and considerations may be readily suggested which increase their force. One is, that there is no right to coerce the payment of a debt due from a sovereign,

and, of course, a sovereign may impose limitations upon its liability. This it does when it provides for the payment of interest, since it agrees to pay that rate, and no other; and indeed, in the absence of such a provision, no enforceable liability would exist to pay any interest whatever. Again, under constitutions like ours, there is no enforceable liability until an appropriation is lawfully made, and an appropriation cannot be construed as extending to claims which a state is not under an express contract to pay. If this be true, it must also be true that an appropriation to pay the principal and interest of a bond only authorizes the payment of interest upon the principal, and not upon the interest.

We do not inquire whether an individual would or would not be liable for interest upon interest, as it is enough to adjudge that a sovereign state is not liable where, as here, there is no contract to pay interest upon interest.

Judgment affirmed.

APPROPRIATIONS, WHAT ARE. -The constitutions of the different states very generally provide that money shall not be drawn from the treasury except in pursuance of an appropriation made by law: State v. Hickman, 9 Mont. 370; People v. Spruance, 8 Col. 535; Baggett v. Dunn, 69 Cal. 75; Weston v. Dane, 51 Me. 461; Martin v. Francis, 13 Kan. 220; Ristine v. State, 20 Ind. 328-345. Hence has arisen the necessity, in many instances, of determining what is an appropriation, and whether a demand for a warrant upon the treasury of the state has been preceded by an appropriation sufficiently specific to justify the proper officer in issuing the warrant demanded.

The supreme court of Indiana, in considering this question, first viewed it negatively, and determined what was not an appropriation, saying: “What, then, is an appropriation by law? What is a definition of it? Judicial decisions are not cited to any extent on this point. It has rarely arisen in the courts of this state, and yet it is one of great importance in the correct administration of the government, and ought to be definitely settled, and when it is so, carefully observed. There are some things which, plainly enough, are not severally an appropriation. A promise by the government to pay money is not an appropriation. A duty on the part of the legislature to make an appropriation is not such. A promise to make an appropriation is not an appropriation. The pledge of the faith of the state is not an appropriation of money with which to redeem the pledge. Usage of paying money in the absence of an appropriation cannot make an appropriation for future pay. ment. The question is to be settled upon the meaning of the constitution. Usage may be evidence of the meaning the administrative officers have put upon that instrument, and, as such, entitled to respectful consideration; but it is no binding interpretation, and the late usage was in fact probably commenced without much consideration": Ristine v. State, 20 Ind. 337. The court then proceeded to view the question affirmatively, and said: “An appropriation may be made in different modes. It may be made by an act setting apart and specially appropriating the money derived from a particular source of revenue to a particular purpose. Our swamp-land act is of this

...

character. 'Appropriation,' as applicable to the general fund in the treasury, may perhaps be defined to be an authority from the legislature, given at the proper time and in legal form, to the proper officers, to apply sums of money out of that which may be in the treasury, in a given year, to specified objects or demands against the state. An appropriation of the money to a specified object would be an authority to the proper officers to pay the money, because the auditor is authorized to draw his warrant upon an appropriation, and the treasurer is authorized to pay such warrant if he has appropriated money in the treasury. And such an appropriation may be prospective; that is, it may be made in one year, of the revenues to accrue in another or future years, the law being so framed as to address itself to such future revenues. So a direction to the officers to pay money out of the treasury upon a given claim or for a given object may, by implication, include in the direction an appropriation": Pages 338, 339.

In the case from which the foregoing quotations were made, it appeared that the state was indebted for a large sum, and that the interest thereon became due semi-annually on the first day of January and July of each year, in the city of New York, and that the faith of the state was solemnly pledged to the payment of such interest; that a statute required the treasurer, at some convenient time prior to the falling due of the interest of the debt of the state, to transmit to New York, without stating to whom the transmission should be made; that the constitution declared all revenues derived from public works, and any surplus remaining in the treasury derived from taxes, after paying the ordinary expenses of government and the interest on the bonds of the state, should be applied annually, under direction of the general assembly, to the payment of the public debt. It was held that there was no appropriation of money for the payment of the interest, and therefore that the auditor was justified in refusing to draw his warrant on the treasurer for the amount of such interest: Ristine v. State, 20 Ind. 328.

If a statute provides for the appointment of an officer, fixes his salary, and declares that it is payable monthly out of any money in the general fund not otherwise appropriated, this is not an appropriation justifying the drawing of a warrant for the amount of his salary when there is no money in the gen. eral fund of the state not appropriated to other purposes: Baggett v. Dunn, 69 Cal. 75; Marshall v. Dunn, 69 Cal. 223.

In Colorado, under a constitution declaring that the general appropriation bill shall embrace only the appropriations for the ordinary expenses of the executive, legislative, and judicial departments of the state, interest on the bonded debt, and for public schools, and that all other appropriations shall be made by special bills, each embracing but one subject, the court held that a statute creating a horticultural bureau, and declaring that to enable the bureau to carry out the purposes of the act "the sum of one thousand dollars is hereby appropriated out of any moneys not otherwise appropriated," did not, of itself, make an appropriation such as was required by the constitution: People v. Spruance, 8 Col. 530.

We apprehend that if the decisions to which we have referred, or any others that may be found, imply that an appropriation must be made in any set form of words, they are not, in that respect, sustained, either by reason or by the majority of the adjudications upon the subject. The appropriations required by the constitutions of the several states are nothing beyond expressions of the legislative will. That will may be expressed in an act which styles itself an appropriation bill, or it may be in some other act. In either event, the words used may amount to an appropriation; the only dif

ference being that, in a statute which did not purport to make an appropria tion, perhaps the intent to make one may need to be expressed in language more clear and definite than if it were contained in a statute professing to be an appropriation bill.

"To an appropriation within the meaning of the statute, nothing more is requisite than the designation of the amount, and the fund out of which it should be paid. It is not essential that funds to meet the same should be at the time in the treasury": McCauley v. Brooks, 16 Cal. 29. And there are few, if any, instances in which the fund from which payment must be made need be named in the statute. Therefore it was held, in the case last cited, that a valid appropriation had been effected where officers of the state had been, by statute, empowered to lease lands and buildings to be used as a state prison, and the statute had declared that "the sum of fifteen thousand dollars per month, or such sum per month less than that amount, in accordance with the contract to be made, is hereby appropriated out of any money in the treasury not otherwise appropriated, and the controller is hereby authorized and required to draw his warrants on the treasury of the state for that sum." When this case was determined, there was in force in the state a statute prohibiting the drawing of any warrants unless there was an unexpended, specific appropriation to meet them; but the court declared this statate constituted no impediment to the issu ing of the warrants by the controller to meet the payment required to be made under the contract entered into under the statute for the leasing of the prison, because "it means only that the treasurer shall not draw a warrant for a specific object when he has already drawn for the full amount of the appropriation made for that object." In an earlier case, in the same state, it appeared that a statute had been enacted creating the office of state printer, and requiring the controller to draw his warrants on the treasury for such amounts as may be due the state printer, and that the controller had refused to draw a warrant, on the ground that the statute did not constitute a specific appropriation; and the claim of the controller was sustained, the court saying: "No fund is appropriated; there is no named amount which is capable of being exceeded. The state-printer acts required warrants to be drawn, but this was in contemplation that there would be a specific appropriation, according to the settled financial system adopted by the legislature, and without which the requirement must be in abeyance": Redding v. Bell, 4 Cal. 333. This case was reaffirmed at a later day, and was preferred to McCauley v. Brooks, 16 Cal. 29, so far as any conflict between them exists; and it was said that "by a specific appropriation we understand an act by which a named sum of money has been set aside in the treasury, and devoted to the payment of a particular claim or demand”: Stratton v. Green, 45 Cal. 149. The case last cited was an application for a writ of mandate to compel the controller of state to draw his warrant for the payment of the salary of the petitioner as a member of the board of tideland commissioners of California. The salary of each member was, by statute, fixed, and was declared to be payable quarterly out of the general fund on the first day of January, April, October, and December. The petitioner had done all the acts required of him to authorize the payment of his salary, but no specific appropriation for such payment had been made, unless made by the provisions of the statute declaring the amount of his salary and the times when it was payable. The claim of the controller was, that this did not constitute a specific appropriation; and in sustaining it the court said: "By a specific appropriation we understand an act by which a named sum