FOSTER, Justice.
The question on this appeal is whether or not the provision in the General Appropriation Act of 1947, General Acts 1947, page 183, at page 197, for “Temporary Clerk Fund $3,500.00” is a limitation on the amount which may be expended under Title 55, section 175, Code, during the period of that Act — the two fiscal years ending respectively September 30, 1948 and September 30, 1949. There is no law which sets up a temporary clerk fund.
Title 55, section 175, Code of Alabama, is a very old statute, enacted in somewhat similar form in 1867, and retained in the several codes since then. It provides for the employment of clerical assistance in addition to that prescribed by law in any of the State offices or departments by order of the governor on the certificate of the head of the office or department, “for such time as he (the governor) may deem necessary”. It is not specifically provided that ony one can fix the salary of such clerks. But it provides that their compensation must be paid as the salaries of other State employees upon account stated, certified by the head of the proper office or department, and approved by the governor, upon the warrant of the comptroller out of any money in the treasury.
Section 71 of the Constitution provides that the -general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the State, interest on the public debt and for public schools; and that no appropriation shall be made in it for an employee unless his employment and the amount of his salary have already been provided for by, law.
The broad question may be broken down into two parts: (1) Is the temporary clerk fund as set up in the Act for the ordinary expenses of one of those departments of the State, since it has no reference to interest on the public debt, nor to the public schools? (2) If it is thereby properly included in the appropriation bill provided for in section 71 of the Constitution, does it serve to fix a limitation on section 175, Title 55, supra?,
We think that expenditures under section 175, Title 55, Code, are for such ordinary expenses as are within the terms of section 71 of the Constitution, so as to be subject to inclusion in the general appropriation bill. Therefore section 45 of the Constitution has no application.
What then is the effect of the $3,500 appropriation? That appropriation is for the “Temporary Clerk Fund”, which has no legal existence in point of fact as a fund. Under section 175, Title 55, supra, the clerk hire is payable out of the general treasury.
Such clerk hire is temporary. There is nothing else in our statutes which looks more like a temporary clerk provision. It is there set up as a provision for additional clerks to be employed for such time as may be deemed necessary by the governor and head of the department. So that we have provision for temporary clerks whose salaries are, we think, a part of the ordinary expenses of the State government.
Under section 71, supra, no appropriation may be made for them unless their employment and amount of their salary have already been provided for by law. There is no express provision of law fixing- the amount of their salaries. But section 71, supra, does not require that this be done by law, but only that provision for it be made by law.
It -is our view that section 175, Title 55 makes such provision for their employment and for their salary by the cooperation of the head of the department and the governor complying with the requirements there expressed. We are also of the opinion that the statute is an appropriation out of the State treasury of an amount necessary to pay those salaries. Riggs v. Brewer, 64 Ala. 282; Reynolds v. Taylor, 43 Ala. 420. It need not be of a definite amount. State, ex rel. Turner v. Henderson, Governor, 199 Ala. 244, 74 So. 344, L.R.A. 1917F, 770.
There was then existing no status to which this appropriation could apply except as provided in section 175, Title 55, Code. And the legislature has not set up a new status to which it might apply.
That statute has existed from our early history, and it has not been pointed out to us where there was ever a limitation on the amount so provided.
In the case of Reynolds v. Taylor, supra, the salary fixed by statute was $2,000. But the appropriation was only for $1,000. The Court held that the appropriation did not cut down the salary fixed by statute. There was nothing else to which it could refer but the salary of a certain officer. ,
In the case of Riggs v. Brewer, supra, there was a statute fixing an officer’s salary. The appropriation bill made an appropriation for the salary in an amount less than that fixed by law. The Court noted that merely appropriating a less sum than that fixed by the statute would not operate to repeal by implication the statute.' That is, we judge, to fix an amount different from that set up in the statute. But the Court held that there were other indications in the appropriation act which showed a legislative purpose to make a change in the compensation of the officer, since it manifestly and plainly intended to „ prescribe the only rule that should govern in reference to the particular matter.
There is nothing in the instant appropriation to shed light on the intention of the legislature as to the meaning of it. There are other appropriations in the general act which refer to certain sections of the Code or Constitution as being the basis of -its operation
The appropriation of $100,000 for the governor’s emergency fund is declared to be the appropriation contemplated in section 105, Title 55, Code, and to be the total amount expended under the provisions of said section. No such provision is contained in the appropriation for temporary clerks.
In Opinions of the Justices, 237 Ala. 377, 186 So. 731, it was thought by the justices that when an act provides for the manner of fixing salaries without an appropriation in terms or effect, the act would not stand under section ‘ 72 of the Constitution. But that is not the status of section 175, Title 55, supra.
But it is insisted that the report of the interim committee on finance and taxation .has a bearing on the legislative intention. It is as follows:
“Temporary Clerk Hire.
“In considering an appropriation for temporary clerk 'hire, the committee re- . ferred to section 175 of Title 55, which section authorizes the employment of temporary 'clerks. In studying that section of the Code, the committee discovered that said section has been construed as providing for a continuing appropriation, without limit, to pay temporary clerks employed and that it was very doubtful as to whether or not any such clerks employed would come through the State Merit System. The committee decided that such procedure in respect to temporary .clerks was unsound and recommends, therefore, that section 175 of Title 55 be amended to provide that any expenditures -thereunder should be limited to an amount 'budgeted from time to time for that purpose in general appropriation bills and that -.’such employees should be employed under thhe provisions of the Merit System.” Reports of Interim Committees, Legislative Document No. 4 of the Regular Session for 1947, page 32.
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FOSTER, Justice.
The question on this appeal is whether or not the provision in the General Appropriation Act of 1947, General Acts 1947, page 183, at page 197, for “Temporary Clerk Fund $3,500.00” is a limitation on the amount which may be expended under Title 55, section 175, Code, during the period of that Act — the two fiscal years ending respectively September 30, 1948 and September 30, 1949. There is no law which sets up a temporary clerk fund.
Title 55, section 175, Code of Alabama, is a very old statute, enacted in somewhat similar form in 1867, and retained in the several codes since then. It provides for the employment of clerical assistance in addition to that prescribed by law in any of the State offices or departments by order of the governor on the certificate of the head of the office or department, “for such time as he (the governor) may deem necessary”. It is not specifically provided that ony one can fix the salary of such clerks. But it provides that their compensation must be paid as the salaries of other State employees upon account stated, certified by the head of the proper office or department, and approved by the governor, upon the warrant of the comptroller out of any money in the treasury.
Section 71 of the Constitution provides that the -general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the State, interest on the public debt and for public schools; and that no appropriation shall be made in it for an employee unless his employment and the amount of his salary have already been provided for by, law.
The broad question may be broken down into two parts: (1) Is the temporary clerk fund as set up in the Act for the ordinary expenses of one of those departments of the State, since it has no reference to interest on the public debt, nor to the public schools? (2) If it is thereby properly included in the appropriation bill provided for in section 71 of the Constitution, does it serve to fix a limitation on section 175, Title 55, supra?,
We think that expenditures under section 175, Title 55, Code, are for such ordinary expenses as are within the terms of section 71 of the Constitution, so as to be subject to inclusion in the general appropriation bill. Therefore section 45 of the Constitution has no application.
What then is the effect of the $3,500 appropriation? That appropriation is for the “Temporary Clerk Fund”, which has no legal existence in point of fact as a fund. Under section 175, Title 55, supra, the clerk hire is payable out of the general treasury.
Such clerk hire is temporary. There is nothing else in our statutes which looks more like a temporary clerk provision. It is there set up as a provision for additional clerks to be employed for such time as may be deemed necessary by the governor and head of the department. So that we have provision for temporary clerks whose salaries are, we think, a part of the ordinary expenses of the State government.
Under section 71, supra, no appropriation may be made for them unless their employment and amount of their salary have already been provided for by law. There is no express provision of law fixing- the amount of their salaries. But section 71, supra, does not require that this be done by law, but only that provision for it be made by law.
It -is our view that section 175, Title 55 makes such provision for their employment and for their salary by the cooperation of the head of the department and the governor complying with the requirements there expressed. We are also of the opinion that the statute is an appropriation out of the State treasury of an amount necessary to pay those salaries. Riggs v. Brewer, 64 Ala. 282; Reynolds v. Taylor, 43 Ala. 420. It need not be of a definite amount. State, ex rel. Turner v. Henderson, Governor, 199 Ala. 244, 74 So. 344, L.R.A. 1917F, 770.
There was then existing no status to which this appropriation could apply except as provided in section 175, Title 55, Code. And the legislature has not set up a new status to which it might apply.
That statute has existed from our early history, and it has not been pointed out to us where there was ever a limitation on the amount so provided.
In the case of Reynolds v. Taylor, supra, the salary fixed by statute was $2,000. But the appropriation was only for $1,000. The Court held that the appropriation did not cut down the salary fixed by statute. There was nothing else to which it could refer but the salary of a certain officer. ,
In the case of Riggs v. Brewer, supra, there was a statute fixing an officer’s salary. The appropriation bill made an appropriation for the salary in an amount less than that fixed by law. The Court noted that merely appropriating a less sum than that fixed by the statute would not operate to repeal by implication the statute.' That is, we judge, to fix an amount different from that set up in the statute. But the Court held that there were other indications in the appropriation act which showed a legislative purpose to make a change in the compensation of the officer, since it manifestly and plainly intended to „ prescribe the only rule that should govern in reference to the particular matter.
There is nothing in the instant appropriation to shed light on the intention of the legislature as to the meaning of it. There are other appropriations in the general act which refer to certain sections of the Code or Constitution as being the basis of -its operation
The appropriation of $100,000 for the governor’s emergency fund is declared to be the appropriation contemplated in section 105, Title 55, Code, and to be the total amount expended under the provisions of said section. No such provision is contained in the appropriation for temporary clerks.
In Opinions of the Justices, 237 Ala. 377, 186 So. 731, it was thought by the justices that when an act provides for the manner of fixing salaries without an appropriation in terms or effect, the act would not stand under section ‘ 72 of the Constitution. But that is not the status of section 175, Title 55, supra.
But it is insisted that the report of the interim committee on finance and taxation .has a bearing on the legislative intention. It is as follows:
“Temporary Clerk Hire.
“In considering an appropriation for temporary clerk 'hire, the committee re- . ferred to section 175 of Title 55, which section authorizes the employment of temporary 'clerks. In studying that section of the Code, the committee discovered that said section has been construed as providing for a continuing appropriation, without limit, to pay temporary clerks employed and that it was very doubtful as to whether or not any such clerks employed would come through the State Merit System. The committee decided that such procedure in respect to temporary .clerks was unsound and recommends, therefore, that section 175 of Title 55 be amended to provide that any expenditures -thereunder should be limited to an amount 'budgeted from time to time for that purpose in general appropriation bills and that -.’such employees should be employed under thhe provisions of the Merit System.” Reports of Interim Committees, Legislative Document No. 4 of the Regular Session for 1947, page 32.
There has been no amendment of section 175, supra, as suggested by this report. To Carry out the purpose of such report, an amendment of that statute was contemplated- in connection with an appropriation referring to it. In making the report the committee observed the propriety of both steps in the process. The appropriation, even if it refers to section 175, supra, without the proposed amendment, was not a completion of the program of the committee. If the legislature intended to make the appropriation ihave the effect suggested without the amendment of section 175, supra, and without the appropriation referring to section 17.5, it should plainly so appear.
This conclusion is not weakened, but rather strengthened, by the fact that «the legislature did pass a bill making the proposed amendment to- section 175, supra, but it did not :meet the approval of the «Governor, and for that reason did not become a law. But the effort on the part of the legislature tends to show that it was their purpose not to make the appropriation, without the aid of the pro,posed amendment, serve to restrict the amount required by section 175, supra.
That bill sought to incorporate in sectiort 175, supra, the substance of some of the terms used in section 105, Title 55, supra, as to the governor’s emergency fund, but, as we have said, it failed to become a law. That is all the more reason why the appropriation for temporary clerks should expressly limit the appropriation in seer tion 175, supra, if so intended. Moreover, section 105, supra, does not provide in ■ itself an appropriation, so that an appro-^ priation is necessary to be made otherwise for that purpose. Whereas section 175, supra, has in itself an appropriation which was sought to be restricted by the proposed amendment to it, in connection with the general appropriation bill. Without this amendment, the plan as contemplated was not carried out nor effected by the temporary clerk fund provision of the Appropriation Act of 1947.
The appropriation here in question is npt set up in terms as a maximum amount, as was done in other features of the Act.
Nor do we think the general terms of section 3 of the Appropriation Act should be held to distinctly and plainly apply to the present situation. It provides that the amounts .specifically appropriated shall be in lieu of the amounts heretofore provided or. appropriated by law for such purposes. But section 175, supra, does not appropriate an amount for temporary clerk hire, and therefore it is not within the provisions expressed in section 3, supra. It is building an inference on an inference to find that this appropriation refers to section 175, supra, and also that it is distinctly and plainly intended to be the maximum amount usable under section 175, supra, when its terms are not so expressed.
By reason of the disqualification of Gardner, C. J., and Livingston, J., thq number of justices competent to sit in this case is reduced to five, so that by virtue of Title 13, section 14, the concur
rence of three justices is sufficient in the determination of this cause.
The judgment of the trial court is affirmed by reason of the concurrence of Brown and Stakely, JJ., with the writer.
Affirmed.
BROWN and STAKELY, JJ., concur.
LAWSON and SIMPSON, JJ., dissent.
GARDNER, C. J., and LIVINGSTON, J., not sitting.