Clearfield Republican. [volume] (Clearfield, Pa.) 1851-1937, 1881-08-03

compromising was cOnsiuefed IN lndl.
ana, "lt may be fees TO sherifls and
certain officers, Wages to laborers /;
salaries to certain other officers, ol
persons in other situations. 10 Indi
ana S5-G. Again in II Ohio State r.,
p. Gl1-ls SALARY" compensation To
an officer for fixed time, or IL may
be the time ofservioe or amount thereof
rendered. All Of these cases draw the
distinction between fees, wages and
salary Few persons would in the
present age eoniound the three as all
meaning the same thing, yet they
might all como under the word "cOm.
pea'dtioa" as used by the Legislature,
but could not by any possibility under
the word SALARY as used by the con-
vention, which carefully avoided and
rejected the word "compensatiop.n 1t
follows, as we conceive, that 80 much
of the act Of 1874, as fixes salary for
tho session Of the Legislature is const-
tutional that which gives per diem
compensation in addition is unconsti.
tutional. 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, salaIyalone was pro-
vijed for in the Constitution. If that
had not been declared, the Legislature
would have had an unlimited mode of
payment, as under the former Consti.
tutions, by tho word "compensdtion.r
By the change of language it is very
manifest that different method of
payment was attended, and the object
of the change was clearly to avoid a
prolongation of the session, or any
temptation therto,
A question has been raised as to
whether the courts can declare an Act
of Assembly voidin part as violated by
the Consultation, aud valid tor The resi
due Ofthat power we have no doubt
Some provisions may he good, others
bad, valid under some state of facts, AS
violatve Of the rights OF individuals,
good against others differently situated.
This act Of 1874 is constitutional 30
far as it gives fixed sum for the ses
sion whether by the name of "SdlHy'
or by another name but il cannot
give both the compensation by the
session, and by the day, or by the day
alone. We arc well aware OF the legal
principle that the Legislature can do
everything consistent with our general
frame of government not prohibited by
the Constitution, and that its power
must be literally construed, whilst the
Constitution OF the United States must
receive strict construction. Congress
can do nothing but what is authorized
by express words or necessary impli.
cation, but can the Legislature entirely
depart from the whole scope and mean
ing OF the Consultation A system is
pointed out in that instrument Can
the Legislature instead of allowing a
salary fix daily pay2 That conflicts
with the intention and is so far void.
We are all well aware that it is only
in clear case that the Courts can de.
clare an Act of Assembly unconstitu-
tional 1t cannot be declared uncon.
stitutional unless shown to be clearly
so. So decided from 3 Sergt. & Rswle
60, down TO I Norris 49, This in
various words-See 4 Barr 1913, 81
Harris ll8, Q Harris l6l, Idem 200,
2 Casey 2s7, 300, 2 Smith All, 4 Smith
260, 26l, II Wright l50, l6 Smith l6i, !
down to 7 Norris "a. A host of other
cases might be cited to the same effect
The power and the duty to do so de-
clare has never been doubted in any
case excepting one by Judge Gibson,
in Eakman Raub, ~ Sergt. & Rawle
$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 constitutional questions great weight
is TO be given to ootemporaneous con.
struction by the Legislature, and that
the statute relied on by the plaintiff
was enacted in 1874, and has been
practiced under ever since, as is said,
without question, II isvery true that
its validity has never been judicially |
questioned, but it was greatly doubted
and denied by Attorney General Lear
in a very able 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 Treasurer. 1t is doubted
in the argument whether the Court
can, with proprlety look into the de-
bates OF the Convention to ascertain
the meaning and intention of tho Con.
vention, but it has been done on sew.
eral occasions by the Supreme Judges
OF the United States, and by those of
our Court at an early day, and even as
late as one case in . W. N. cases 241 in
1880. We are, therefore, clearly OF
opinion that 80 much of the Act of the
llth of May, 1874, already cited, as
pretends to give daily pay, in addition
TO fixed sum, TO members OF tho Leg
IL unconstitutional and void.
1t would be unlawful for the State
Treasurer TO pay it this Court cannot
enforce payment by mandamus, and
The same must be refused. We leave
put OF view every question of policy or
'xpedicncy. Those are questions for
The Legislature alone, over which the
judiciary has no control, and no right
Or disposition to pass judgment
JoHN j. PEARSON,
II, III. HEEpERsos,