Lancaster daily intelligencer. [volume] (Lancaster, Pa.) 1864-1928, 1881-07-27

80 SSsysSAssS Ps VAs~4Os 0Os0AyS
compensation TO an officer for fixed time,
q it nay be the time Of service or amount
thereof rendered. All of these cases draw
Ethe distins1ton between fees, wages and
salary. Few persons would in the present
age confound the three as all meaning the
same thing, yet they might all come under
the word Compensation as used by the
Legislature, but could not by any posi-
bflity under the word "salary" as used by
the convention, which carefully avoided
aud rejected the word compensation" 1t
follows, as we conceive, that so much of the
act of 1874. as fixes salary for the session
of the Legislature is constitutional that
ditiOn is unconstitutional. The Legislature
might have declared that the session
should not exceed one hundred and fifty
days, but the salary must be fixed, and
whether the session lasted twenty days or
one hundred and fifty, the salary must be
paid. The time and amount were both
discretionary, but it could not be salary
and daily pay also, on a sliding scale, a
salary alone was provided for in the con-
stitution. If that had not been declared,
the Legislature would have had an un.
limited mode of payment, rs under the
former constitutions, by tue word "c0m-
pensation." BY the change of language it
is very manifest that a different method of
payment was intended, and the object OF
the change was clearly to avoid a pro-
longatiOn Of the session, or any temptation
thereto.
A question has been raised as to wheth-
er the courts eau declare an act of assem-
bly, void in part as violated by the cOnsti-
tuition, and valid for the residue. Of that
power VIC have no doubt. Some provisions
may be good, others bad, valid under some
state of facts, rs viOlativo Of the rights of
individuals, good against others different
ly situated. This act OF 1874 is constitu-
tional so far as it gives fixed sum for
the session whether by the name of "saL-
dry" or by another name but it cannot
give both the compensation by the
session, and by tile day, or by
the day alone. We arc we'll aware of the
legal principle that tho Legislature can do
everything consistent with our general
frame of government not prohibited by
the constitution, and that it's power must
be literally construed. whilst tho .cOnsti-
tuition Of the United States must receive 4
strict construction. Congress can do
nothing but what is authorized by express
words or necessary implication, but can
the Legislature entirely depart from the.
whole scope and meaning of the constitu-
tion? A system is pointed out in that
instrument. Can the Legislature in
stead of allowing a salary fix daily pay? :?
That conflicts with the intention and is so
far void.
We are all we'll aware that it is only in {.
clear case that tho courts can declare an
act Of Assembly unconstitutional. 1t can
not bo declared unconstitutional unless
shown to be clearly so. So decided from 3
Sergt. & Rawlc 90, down to 7 Norris 46.
This in various words-See Barr 1913, 5
Harris 11S, Harris 161, Idem 200, 2 Cas-
cy 257, 800, 2 Smith 474, Smith 2GO, 261,
II Wright $50, 16 Smith 1G4, down to
7 Norris 4G. A host Of other cases might
be cited to tho same effect. The power
and the duty to do SD declare has never
been doubted in any case excepting one by
Judge Gibson, in Eakman Raub, 12. s and
r.. $50, which he afterwards entirely re-
pudiated and lamented having given.
The majority Of the court differed with
him entirely. We are aware that in con-
stitutiOnal questions great weight is to DO
gived to cOtempOraneOus construction by
tho Legislature, and that the statue relied
Oh by the plaintiff WAS enacted in 1874,
and has been practiced under ever since, rs
is said, without question. 1t is very true
that its validity has never been judicially
Questioned, but it was greatly doubted and
lcnicd by Attorney General Lear in a very
sble opinion presented to us, but in some
way the controversy was dropped and
never brought before the judiciary, and
perhaps not presented to the state treasur.
,r. It is doubted in the argument
the court can, with prOpriety,
OOk into the debates Of the convention to
the meaning and intention of
lie conventiOll, but it has been done
III several occasions by the supreme
Judges of tho United States and by those
If our court at All early day, and even rs
ate as one case in 0. w. N. of cases, 241,
II 1880. Wc are, therefore. clearly of
opinion that so much of the act of the nth
If May, 1874, already cited, as pretends to
rive daily pay, in addition to a fixed sum,
o members Of the Legislature, is unconsti-
utional and void. 1t would bc unlawful
or the state treasurer to pay it !; this court |
annot enforce payment by mandamus, and
ho same must be refused, We leave out |
# view every question of policy or cx-
,ediency. Those are questions for tho
legislature alone, over which the judiciary
las no control, and no right or DISPOSE
ion to, pass judgement.
JOHN j. PEARSON,
49, r. nj. HENDERSON,,
Judges.