The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1873-02-13

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The following is the report submitted
to the House by Gen. Lowry, from the
Judiciary Committee, on the Peniten-
tiary resolution and the veto message of
the Governor: The report was referred
to the special Committee on Location.
1t will be seen that the report dissents
from the legal views contained in the
message, and is an able and conclusive
review OF that paper:
Mr.. SPEAKER: The Judiciary Committee,
to whom was referred the resolution in
volving the purchase of a site for the pro-
posed new Penitentiary. by majority OF
Tbs, Inspectors appointed by an Act en-
titled an Act for the regulation. control
aud support of the Penitentiary. and the
veto of said resolution by His Exeeiieney'
the Governor. would most respectfully state:
First That the purchase of "A majority OF
said inspectors, to-wit: EggleSton and
Charles, was not authorized by law. The
law under which they acted made no pro-
vision whatever. either directly or by inn
nIieation. for 3 majority of said board 70
act. The adiudicaJions upon the subject
would be sure to settle this principle of law.
that when several commissioners are APP
noipted i'm pursuance of n statute Il dis
charge anv duty, and there is no provision
IN the statute that any number less than the
whole can act. it is essential, To give va
lidity to their action. that all should assent
To and concur in the performance. This
principle has received the express sanction
of the High Court of Errors and Appeals in
this State in the case of X. +. Ballard ct al.
vs. JAS T.. Davis, 3lst Mississippi Reports,
mage 525, and commeDds itself as being ac-
tually necessary for the safety of the public
/ that ali should concur in the performance
of a public duty; for iC j. not 10 be pre-
/ sumed that the Legislature would have en-
| trusted so grave matter, and one so deep
| ly affecting the public interest. 10 the de-
| termination of part only OF the persons who
| were selected t. discharge the required
| duty. If the laW-makinG power intended
! 10 submit such an important trust TO two
| persons they would hardly have appointed
and paid three 10 perform the duty; in
deed. il would b. d II Election apon the good
sense of the Legislature 20 assert that they
would be entity of such reckless disregard
| of the public interests As TO make provision
tor the selection and payment OF three
officers to discharge Il plblic duty, and, at
the same time. provide that two only were
necessary. The object clearly WAS mat all
/ should concur in the selection and pur-
! chase.
second. In regard to that portion of the
resolution directing the Auditor of Public
| Accounts TO withhold his warrant from
! ShOtwelI. we submit that in the absence of
| instructions, he could not have issued his
| warrant for the reason that he had no au-
thoritv so to do. The 57th section Of the
Act under which Mess"s. EgglestOn and
Charles made the selection aud purchase,
made no provisions whatever for the pay
ment. II would seem from the reading of
| the section, that the intention OF the LegiS-
| lature was to direct the Inspectors to make
tile selection and purchase. and an apprQ-
| priation would thereafter be made for its
| payment. This is manifest from the fact
that in the same section the Inspectors are
| authorized. in certain contingencies, to pur-
| chase material, etc, to the amount OF ten
! thousand dollars, and that. upon the appro-
| val OF the Governor, the Auditor shall issue
| his warrants for the same, thus showing
! that in the one instance 1t was intended for
him to issue his warrants, ana the section
/ expressly so stat, d in the other, it was not
| SO intended, unless by implication, which Is
| not favored in law. Under our theory OF
| government. however progressive we may
! be- it j. claimed that We stIli adhere to plain
| provisions of the Constitution under which
| we live. Accepting this as true, we submit
| that am officer of the State Government
! cansot do any thing connected with his
| Off :ial duties, save what Is prescribed by
| law. Under the 26th section of the Consti-
tuition, money cannot be drawn from the
! Treasury except on appropriations made by
! law. There being no appropriation in this
| case, it would be palpable violation of the
| Constitution for the Auditor of Public Ac-
| counts to assume the prerOgatlve'Of Issuing
his warrants in payment of the land pur-
chased by the Inspectors, Eggleston and
Charles, though he had the sanction of the
! Executive.
Third, AS to the question raised by His
| EXcell9ncy, that the resolution is unconsti-
tutional, because it is an eG post .fdctO law
| and i'm pairs the obligation of contract
| We submit first, that it is clearly settled
| that it is not an er post fGctO law, because it
| has no reference. to crimes or the punish
ment thereof; second, that provision of the
| Constitution that refers to impairing the
| obligations of contracts, has no reference to
| the passage of statutes or resolutions by
State in relation to its own Indebtedness.
On the 10Th of October. 1865, the Legisa-
ture passed a joint resolution prohibiting
the Auditor from issuing any warrants for
| the payment of any debt due by the State !;
and in the case of Swami VS.. Buck, 40th
Mississippi Reports, page 26S, that resolu-
was decided to be constitutional, and fur
1 Their decided that debts due by the State
could only be collected by application to
| the Legislatures; and that decision has not
been changed or modified, and it seems to
settle conclusively this question. And
! however great the changes may have been
in our system of government, we submit
| that under the distribution of powers the
Supreme Court is still the only safe eX-
FOUNDER OF the Constitution and laws.