I dissent. In addition to the reasons given by the chief justice in his concurring and dissenting opinion, I desire to point out that the effect of the majority opinion is practically to remove the word “contingencies” from the statute under consideration, and to make the emergency fund available in situations where the legislature did not intend it to be used. It is obvious that the words “emergencies” and “contingencies” are employed for a purpose, and while it may not be possible or necessary to lay down a definite, fixed meaning for these terms, it is nevertheless plain that they imply something that was not foreseen by the legislature at the time of making the regular appropriations. In other words, no matter how broadly they are construed, they cannot comprehend the usual, current operating expenses of a department of the government when the legislature has, with full knowledge of the func361tions of said department, made a specific appropriation therefor. The words “insufficient appropriation” cannot be isolated from the rest of the statutory language, so as to justify resort to the emergency fund merely because the regular appropriation has been exhausted, for in such case the legislative appropriation would have little meaning, and the requirement of a budget might well be dispensed with. The “insufficient appropriation” which calls for a tapping of the emergency fund must be one where the insufficiency arises from a contingency. Hence, where a department pursuing its normal and proper functions exceeds its appropriation, it has disregarded the legislative mandate, and I do not believe that the legislature intended that the emergency fund should be used as a convenient method of evasion of the restrictions of the regular appropriation. Indeed, if the fund is to be so readily available for normal expenses, it will in all likelihood be found too depleted to take care of genuine emergencies.
I am perfectly willing to concede that the question is, in the first instance, one for petitioner as director of finance; and some weight is to be given to his conclusion regarding the existence of an emergency. But while his opinion is significant in the determination that an emergency exists, it cannot be conclusive as to what constitutes an emergency. In other words, his determination of the existence of an emergency must be tested by the proper meaning of the term as used in the statute, and under that test, it fails to justify the order demanded. The record contains nothing to show that the contemplated expenditures are for purposes that were not foreseen. The showing made is simply that the regular appropriation has been exhausted, and that petitioner has concluded that an emergency exists. To grant relief on such a record is to thwart the clear legislative intent.
The writ should be discharged and the proceedings dismissed..
