Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-03-23

of work actcsliy done, So Inc tire act
ually employed. L would hardly hay.
been coniended ihst under such = contract tbs
State could not stop the survey. snd require
Han TO quit work ~ any time it pleased
tdissoun V. Walker, snpra, at pp SA;-5
is manifest that though the appoint.
ment of Captain Mullan was made by the
Governor. and though this appointment
was confirmed by the Legislature. be was
not constituted q public officer. The Leg
lslaiure did not intend TO create an office.
| bat TO ratify an employment and prescribe
| the emolument attached to ii. A public
office embraces the ideas of tenure. dura-
ton, emolument and duties United
States VS.. Hartwell, 6 Wall, 1851 Can
tain Mullan was merely employed as an
agent for specific purpose, and it s NOT
necessary, therefore, for him to conform to
the usual requirements concerning aualifi-
cation for duty imposed upon officers of
the State. His relation TO the State of Cal
ifornia is similar TO Halls or Buffers rela.
ton to the State of Wisconsin. except that
ii lacks the element of certain period Of
service.
The appointment of Captain Mullsn con.
stitutes him the agent of the State of Cali
fornia, and though this relation may be
dissolved by the State at pleasure, it seems
clear that the same power must issue the
revocation that confirmed and ratified the
selection of the agent.
II both the Legislature of the State and
the Governor of the State NAV exercise
this power, then Captain Muilan must
serve two masters. He might Quit his
duties upon notice 10 that effect
from the Governor, and be threat
ened for neglect of duty nv
the legislature. If his appointment
had TO be ratified by the Legislature il
must be concluded that under the laws and
Constitution of the State, it holds good nm
III revoked by the same body. or until the
Governors revocation is approx ed BY that
body.
l hold, therefore, that Captain John
MGllan has been duly appointed to prose
cute the claim above mentioned before this
Department; that such appointment consti-
tutes him an agent, not public officer. of
the State of California; that his authority is
not coupled with an interest in the subject
matter of the agency, and is, consequently.
revocable at the pleasure of the State that
this power of revocation is lodged with the
Legislature. not with the Governor of Cali
FORMS; and that, as the Legislature has
taken no action in the premises, Captain
Mullan must be recognized by this office as
the agent and attorney of the State of Cali
fornia, notwithstanding the notification of
Governor Waterman dated February 10,
1888. SIGoURNEY BUTLER. Comptroller.
Governor Waterman again brought this
matter to the attention of the Legislature
in his regular biennial message in January,
1882 whereupon Captain Mullan came from
Washington to Sacramento to again urge
the rightfulness of his position, and to pre-
test against the exercise otthe power claimed
by the Governor. Captain Mullan pre-
sented his case and complained to the Leg
islature, through said committee, in
voluminous sworn statement, made I'D of
three separate parts, containing in all 153.
printed pages.
Captain Mullan, upon being interviewed
by representative of the RECORD U MON
concerning this entire subject, said
1.-THE Legislature did not agree with
the Governor as to his alleged power
to vacate CONTRACTS of employments.
On the contrary, the Legislature, by
its action just taken, declared that
the honor and good faith of this State
demands that justice shall be done TO
all parties whom this State has here
tofore employed to collect these claims
against the United States, both dur
ing and after collecting the same
that Hon. James E. Hale, of Placer county,
Thomas M. Nosler, of Alameda county,
and myself, whom this State or its officers
have heretofore employed to collect from
the United States these unpaid claims, did
not have any claims of any kind before
this Legislature, nor before any of its COM
mittees, nor did this Legislature pass upon
or order to be paid any claim of either
of us; that all that this Legislature did
was to declare that this State had contracted
with US to collect from the United States
certain unpaid claims, as named and re.
cited in the report of said committee, and
to collect the same at our own expense,
without any cost of any kind to this State,
and that whenever we succeeded in collect
ing these claims, that we should be paid
out of said collections the commissions
which the State of California had hereto
fore contracted and agreed to pay us for
our services in collecting said claims