10 Mont. 485; Humbert v. Dunn, 84 Cal. 57, and the principal case. Contra, State v. Weston, 6 Neb. 16.

The constitution of a state is a law, and its provisions may therefore operate as an appropriation of moneys without any legislative action whatever. Thus if it states what the salary of an officer shall be, and the times when it shall become due, it is the duty of the controller to draw and the treasurer to pay warrants for the amount of such salary as it falls due: State v. Hickman, 9 Mont. 370; Thomas v. Owens, 4 Md. 189; State v. Weston, 4 Neb. 216. To hold otherwise would give the legislature, by its non-action, the power to annul the constitution.

A statute, though sufficient to constitute an appropriation, may be rendered ineffectual by the fact that all the moneys in the treasury are, either directly or by implication, appropriated to other purposes. Thus statutes may contain appropriations for specific sums for special purposes, and other general appropriations by which sums are directed to be paid out of moneys not otherwise appropriated, in which case, if there are no more moneys than are necessary to pay the specific appropriations, they will generally be conceded precedence, and the less specific appropriations will properly remain unpaid, though the statutes respecting them are sufficient to constitute appropriations if the requisite moneys were in the treasury to meet them. So appropriations required to meet the current or necessary expenses of the state or county government are, we think, to be preferred to other appropriations. No court would willingly hold that the wheels of government inay be stopped, by taking the money raised for the express purpose of paying the necessary current expenses of the government, and applying it to the payment of old debts which had perhaps been entirely overlooked by the legislature, or the payment of which might be impossible or inexpedient in view of the financial condition of the state. This precise question was decided by the judges of the supreme court of Colorado, in their opinion given in accordance with the constitution of that state, in response to interrogatories propounded by the governor: In re Appropriations, 13 Col. 316. One of the questions so propounded involved the determination of the question whether, in case the money in the state treasury should be insufficient to pay all valid appropriations drawn against it, such appropriations should be paid in the order they were made, or whether precedence should be given to any particular class. In answer to this question, the judges certified as their opinion that the acts of the legislature making the necessary appropriations to defray the expenses of the government for a particular fiscal year, including interest, on any valid public debt, are entitled to preference over any other appropriations from the general public revenue of the state, without reference to the date of their passage. After referring to the clause in the constitution of the state prohibiting the payment of money unless in pur suance of an appropriation made by law, and the clause permitting the governor to veto any distinct item in an appropriation bill, the judges said: "This shows a clear purpose to invest the executive with discretion to save such appropriations as are necessary to defray the expenses of the gov ernment without the danger of encumbering or defeating them by excessive or improvident expenditures. Considering the great care thus taken to secure and guard such appropriations, we cannot doubt that the ordinary expenses of the legislative, executive, and judicial departments of the state are the expenses primarily intended to be provided for by section 2, article 10. It would be a deplorable condition of affairs if, by making excessive appropriations, or by authorizing improvident expenditures under enactments

containing emergency clauses, the constitutional limit should be reached before the passage of appropriations indispensable for the support and maintenance of the several departments of the government, whereby the latter appropriations should be rendered unconstitutional. We must not be under. stood as expressing any fear that the general assembly would intentionally attempt any such thing, though it might happen through inadvertence if a different construction were given to the constitutional provisions under consideration. In view of the examination we have given the subject, we are of the opinion that acts of the general assembly making the necessary appropriations to defray the expenses of the executive, legislative, and judicial departments of the state government for each fiscal year, including interest on any valid public debt, are entitled to preference over all other appropria tions from the general public revenue of the state, without reference to the date of their passage, and irrespective of emergency clauses." A similar result was reached in the case of McDonald v. Griswold, 4 Cal. 352, in which the court, construing the act authorizing the board of supervisors of a certain county to levy a tax of a given amount "for county purposes," held that the tax so raised must be employed, at least in the first instance, for the payment of the ordinary expenses of the county, in preference to the pay. ment of the floating debt."

So it has been held in Louisiana that where there are officers whose salaries are fixed by the constitution, and also state institutions recognized by the constitution, and which it intends shall be continued and kept in an effi cient condition, appropriations made for such salary and the maintenance of state institutions must be given precedence over other appropriations: State v. Burke, 37 La. Ann. 434; State v. Burke, 35 La. Ann. 457.

Some of the constitutions, in addition to the general declaration that no money shall be drawn from the treasury except in pursuance of appropria tions made by law, further declare that no appropriation can be made for a longer period than two years. In considering this latter provision, it has been said: "This section means simply this: that provisions for the support of the government by one legislature must be limited to two years. It does not require that the amount appropriated be actually drawn from the treasury during that time, but the expenses must be incurred on the salary earned during the two years for which the appropriation was made ": Opinion of the Judges, 5 Neb. 572.

The question whether, when an act has been passed authorizing a contract to be entered into on behalf of the state, and making the appropriations necessary on its part to comply with its contract, the act can be repealed, and the appropriations thereby withdrawn, was also presented in the case of People v. Brooks, 16 Cal. 11, and in the opinion therein by Mr. Justice Field, now of the supreme court of the United States, was disposed of as follows: "The act of April 19, 1859, providing for the condemnation and appropriation to the use of the state of the interest of certain parties in the state prison grounds, repealed the act of March 21, 1856, but such repeal did not affect the contract made under the repealed act. The contract was a thing consummated, and, after its execution, did not depend for its further existence upon the continuation of the act which originally gave it life. The contract remained, after the extinction by repeal of its parent act, possessed of the same operative and binding force as previously. The rights of the parties and their respective obligations became fixed by that instrument beyond the reach of legislative power. They required for their enforcement no further legislation or reference to the act under which they were created, and

were vested interests. The premises constituting the prison and prison grounds had been leased for five years, and the leasehold interest was beyond the power of revocation. It was vested for that period, and the right to the ten thousand dollars a month was equally so. Upon neither the right to the interest in the property or to the money could subsequent legislation operate. The constitution tolerates no such absurdity as the total destruction of a contract, whilst it inhibits attempts to impair its efficacy. If the proposition that a repeal of the act of March 21, 1856, discharged the appropriation and rendered the contract no longer obligatory could be sustained, it is not perceived why repudiation of bonds issued under the various funding acts of the state may not, on the same grounds, be defended. The indebtedness of several cities and counties of the state has been funded, and bonds have been issued therefor under different statutes, which provided at the same time the means for meeting the yearly interest thereon, and for their ultimate payment. It would be a strange doctrine that a repeal of any such funding acts would impair the right of the bond-holders, either to their interest or principal. The learned attorney-general would never advance a doctrine so repugnant to all just notions of the obligations of good faith and the guaranties furnished by the constitution. And if the state were indebted within the constitutional limit, excluding the amount rendered valid by the vote of the people, and should see fit in like manner to fund the indebtedness, he would not contend, we are confident, that subsequent legislation could impair, much less destroy, the rights of the parties taking her bonds. And yet her faith would be no more pledged for their payment than it is to discharge the obligations of the contract in relation to the state prison. The contract with the bond-holders and the contract with the lessee would stand upon the same footing. The repudiation of one would not be more odious than would be the repudiation of the other. If she can do one, she can do the other. If she can repudiate one, she can repudiate both. The truth is, she can do neither. The appropriation once made, the funds to meet it having been provided and received into the treasury, the legislature cannot, by revoking the appropriation, prohibit the treasurer from making the payments designated."

INTEREST. — WITH RESPECT TO THE OBLIGATION OF THE STATE to pay interest upon its indebtedness, the principal case is well sustained by other authorities upon the same subject. In nearly and perhaps in all of the states there are statutory provisions providing that moneys, after they become due, shall, in the absence of express contract to the contrary, bear the rate of interest specified in such statutes; but, acting under the old common-law rule that the king or sovereign is not bound by a statute unless expressly named therein, it has been uniformly held that these statutory provisions respecting interest did not apply to any obligation either of the state or of the national government, and therefore that interest is never allowed upon such obligations, in the absence of some special statute clearly manifesting the intention of the sovereign to be bound for the payment of interest upon the particular obligation or class of obligations under consideration: United States v. North Carolina, 136 U. S. 211; State v. Thompson, 10 Ark. 61; State v. Board of Public Works, 36 Ohio St. 409; State v. Bank of Washington, 18 Ark. 554; United States v. Sherman, 98 U. S. 565; United States v. Bayard, 127 U. S. 251; Tillson v. United States, 100 U. S. 43; In re Gosman, 17 Ch. Div. 771; Attorney-General v. Cape Fear N. Co., 2 Ired. Eq. 444; Bledsoe v. State, 64 N. C. 392; Trustee v. Campbell, 16 Ohio St. 11; Josselyn v. Stone, 28 Miss. 753; Wightman v. United States, 23 Ct. of Cl. 144.

STATES, CONTRACTS OF. A state may make a valid contract in like man· ner as a private person may do so: State v. Bank, 2 Houst. 99; 73 Am. Dec. 699. A state, entering into a contract with its citizens, can claim no exemp tion from the rules of law applicable to contracts between individuals: Patton v. Gilmer, 42 Ala. 548; 94 Am. Dec. 665. When a state breaks its contract, it may be liable for prospective profits: Danolds v. State, 89 N. Y. 36; 42 Am. Rep. 277. However, a state cannot be sued, as in the case of a private person, except by its own consent: Carter v. State, 42 La. Ann. 927; 21 Am. St. Rep. 404, and note; Julian v. State, 122 Ind. 68.

STATUTES UNCONSTITUTIONALITY, EFFECT OF. - An unconstitutional statute is absolutely null and void: State v. Tufly, 20 Nev. 427; 19 Am. St. Rep. 374, and note; Adsit v. Osmun, 84 Mich. 420. The repealing clause in an unconstitutional act falls with the rest of the act: State v. Blend, 121 Ind. 514; 16 Am. St. Rep. 411. A statute cannot be repealed by an act which is unconstitutional: Judson v. City of Bessemer, 87 Ala. 240.

BRUMBAUGH v. RICHCREEK.

[127 INDIANA, 240.]

FRAUDULENT CONVEYANCE. —A CREDITOR CANNOT MAINTAIN AN ACTION TO SET ASIDE A CONVEYANCE of his debtor as fraudulent, unless he shows that his debtor has not, at the time the action is brought, any property out of which the payment of the debt can be compelled, though when made, such conveyance left the debtor without any property subject to execution.

FRAUDULENT CONVEYANCE.-Though a debtor conveys property with the intention of defrauding his creditor, the latter cannot complain, if the former retains or subsequently acquires property out of which the debt may be collected.

CREDITOR OF PERSON OF UNSOUND MIND, whose mental unsoundness has not been judicially declared, cannot maintain a suit in equity to set aside a conveyance made by the debtor which does not injure the creditor.

PRACTICE.

-THE FINDING OF FACTS NOT ALLEGED cannot sustain a judg. ment upon appeal.

I. H. Hall, E. Haymond, and L. W. Royse, for the appellant. S. J. North and H. S. Briggs, for the appellees.

MCBRIDE, J. This was a suit by Rachel Richcreek, the appellee, to set aside an alleged fraudulent conveyance of land. The appellee was a judgment creditor of Susan Brumbaugh, who had conveyed certain lands to appellant, and appellee insisted that the conveyances were made by said Susan and received by appellant for the sole purpose of preventing the collection of her claim.

The complaint is in two paragraphs, and the circuit court overruled a separate demurrer to each paragraph. Appellant excepted, and this ruling is assigned as error.

In the first paragraph of the complaint it is alleged, in substance, that on the twenty-fourth day of October, 1885, said Susan, "contriving to cheat, hinder, delay, and defraud plaintiff out of her said debt," conveyed a portion of said land to appellant, and afterwards, on the first day of April, 1887, "the more effectually to place said Susan in a situation to defeat the collection of plaintiff's claim, and to cheat and defraud plaintiff out of her said claim," conveyed to appellant the residue of said land, and that such conveyances were voluntary, and without consideration; that appellant had knowledge of said indebtedness, and of said fraudulent purpose, and that said conveyances left said Susan "with no property whatever subject to execution."

In the second paragraph it is alleged that said Susan was "of weak and infirm mind, and wholly incapable of making any contracts or transacting any business for herself," and that appellant, "having knowledge of her indebtedness to plaintiff, and also having full knowledge of her mental incapacity, and purposing and intending to cheat and defraud plaintiff out of her debt, and to prevent it being made out of the property of said Susan," procured and induced her to convey the land to him, which she did at the time indicated in the first paragraph, without any consideration whatever, "leaving said Susan without any property whatever subject to execution."

There is no averment in either paragraph of the complaint that at the time of the commencement of the suit the debtor had no property out of which the debt might have been collected, nor is there any equivalent averment.

This suit was commenced October 10, 1887, while, as above shown, the last deed was made April 1, 1887; and the only averment occurring in either paragraph with reference to what, if any, property she had remaining is that quoted above, that when the deed of April 1, 1887, was made, it left her "without any property subject to execution."

In a suit by a creditor to set aside a conveyance of property on the ground that it was made to defraud creditors, an averment that at the time the suit was brought the debtor had no property out of which the debt might be collected, or an averment equivalent thereto, is material and necessary, and its omission is fatal: Bruker v. Kelsey, 72 Ind. 51; Sherman v. Hogland, 73 Ind. 472; McCole v. Loehr, 79 Ind. 430; Bishop v.