The Fremont weekly journal. [volume] (Fremont, Sandusky County, Ohio) 1867-1877, 1869-06-04

sed, in either house, unless their allow
ance be eoneurred in, not by majority
merely, but the two-thirds of all the
members elected thereto. II can not
be doubted that these provisions were
intended to have operative and control
ling influence, as we'll on the execution
as in the enactment Of laws; but they
would be rendered quite nugatory, and
the journals, a very useless and expen-
sive surplusage, il those whose duty it
is to expound or execute the laws may
not inspect these journals to ascertain
their validity. II they can not, the ma
jority Of a mere quorum might, at the
close of a session in thin houses,
declare the passage and order the pub
lication Of acts Of The greatest import
ance, which had not received the mum
Der of votes required BY the cOustitu-
ton, and against the enforcement of
which although totally invalid, the pee
pie would be without redress or remedy.
It would seem, therefore, that the keep
ing ofjOurnals, certainly the entering Of
the yeas and nays therein, can have no
other object than to enable the execu-
tive and Judicial officers, by an inspec-
ton thereof, to remedy the mistakes,
accidents-frauds il may be-that may
have crept into the statute booke.
That the journals may be thus in
sDeeted was strongly iutimated in Mil
Ter q Gibson's case, supra. The point
was not directly raised by the case, and
hence the opinion expressed was not in-
tended to be authoritative, but it clear
y diseloses the views entertained by
the court. In their opinion they say:
"If it were found by an inspection Of the
legislative journals, that what purports
to be law upon the statute book was
not passed by the requisite number, of
votes, it might possibly be the duty of
the courts to treat it as nullity." The
soundness of the view thus expressed,
though not authoritative, is uuquestiou-
able. But what the courts may do,
the executive officers may also do, sub
jeet, however, to be controlled by the
courts in case they err. They admin
ister the public finances at their peril.
No money can be drawn from the
treasury by them except in pursuance
Of law. They are there bound to in
quiTe what in the statute books are val
id loans. For this purpose they may
inspect the Legislative journals to in
quire as to their passage, If they can
not do this, laws for the appropriation
and paying out of the public moneys
could never be brought under review
before the courts.
For the passage Of the acts in quss-
ton, the constitution requires the con-
eurrenee of two-thirds of the members
elected to each house. An inspection
Of tue Legislative journals shows that
they did not receive this number of
votes in either branch of the assembly.
They therefore never became subssan-
tive constitutional expressions Of lsgis-
lative will-neyer becsme aud are not
laws; and hence no money can be
drawn from the treasury in pursuance
Of them. They must be treated as null
lities. af-J ra
70 this conclusion the claims for dam
ages by the acts of the state mill
tia are possible exceptions. The Bill of
Right section 19, provides that "pri-
vate property shall ever be held inVio- |
late, but subserVed to the public vel
fare. When taken in time of war, or !
other public exigsncy Tsguires its i'm
mediate seizure compen-
sation shall be made to the owner there
ofin money" The existing law of
April II, 1858, authorized the COVER
nor, Sin case of the invasion Of the
state or danger thereof, to take measures
to call into active service such number |
of militia as in his opinion might be !
necessary to defend the state and repel |
invasion" From this grant Of power
may reasonably be implied the sane
ton of the legislature to whatever acts
the laws of war might justly the militia
in doing, while in the execution of their |
service. Their acts viii be presumed |
to have been necessary to, and done in
fIrtherance of such service, unless the |
contrary be afirmatiYely shown.
Hence, the acts under consideration
may be sufficient to authorize the pay
ment of this class of claims, although |
even this admits Of doubt
Bat the other claims growing out Of
the Morgan expedition rest upon a diff
ferent basis. As to them the duty of
financial officers is so plain that doubt
is scarcely possible.
1t has been suggested, however, that
the attorney general might eDjoin the
payment of these claims and thus raise
tue question of the validity of the sta.
tutes under the constitution.
But the attorney GeneraI has no part
in administering the general revenue.
He could only act in the premises
when ordered so to do by the proper
executive department or officer. If |
there be no valid law in pursuance of
which money can be drawn from the
treasury, it is much more the duty of
the financial officers to withhold than
it is of the attorney general to eDjOin
The opinion herein is, of course, not
conclusive. It may be reviewed, and,
if found to be erroneous, over-ruled and
reversed by the proper court, The
whom it affects, have an
easy and q speedy remedy by manda-
mus, to which they may resort if not
with its reasoning aud the con
clusion reached.
| have the honor to be, very respect
fully
W. II. WEST, Attorney General.
Ohio Post Office Mutual Benefit Asso-
1s citation.
This Associstion-Which has for its OBJ
rrv,o, A., 1sfo =