Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1890-01-17
THE RECESS PER DIEM QUESTION.

THE RECESS PER DIEM QUESTION.
So much discussion has been had re-
garding the right of the members and
employees to draw per diem during the
holiday recess, and the question has
evoked SO much criticism pro and con,
and as the legislature had taken no
action in the matter, Auditor Bray con-
cludcd to fortify himself with N opinion
from the encouragement. The follow
ing communications explain themselves:
Hon. George F. Goodwin, Attorney-Gen-
eral, Bismarck, N. Oak.
DEAR SIR: L have the honor to submit
the following questions for your opinion,
tO-Wit:
First-Is it my duty as state auditor to
draw warrants on the state treasury for
the per diem of the members of the legis-
lative assembly and for the officers, clerks
and employees OF the same, during the adj
jOurnment or recess of said assembly from
December 10, 1889, to January 7. 1890?
Second--Providing vouchers are certified
to by the president OF the senate and
speaker OF the house, attested by the chief
clerks of the same, directing me to draw
warrants for said vouchers, have | the
power and sufficient authority to do so?
Third-PrOviding it is not my duty and
| have not the authority to draw warrants
for the per diem of the legislative assembly
for the time above mentioned.
Does 1t become my duty, and have | the
power and authority to draw warrants in
payment of mileage going from and re-
turning to the capital on account of the ad-
jOurnment or recess Oh December 10, 1889?
| am, dear sir, Yours respectfully.
JOHN p. BRAY,
State Auditor.
OFFICE OF ATToRNEY-GENEHAL,
BISMARCK, North Dakota.
January, 18th, 1890.
To Hon. John p. Bray, state auditor:
DEAR SIR: | have the hone r to acknOwss
ledge the receipt of your favor of the 18th
inst, asking as to your power and author
ity to issue warrants in payment of per
diem OF members and employees OF the leg
lslative assembly from Dec. 10Th. 1889, to
Jan. 18th, 1890.
The facts as shown by the printed Jour
mails OF both house, appear to be that the
Legislative assembly, in pursuance of a
concurrent resolution OF both houses, ad-
jOurned on said 10Th day of December, 1889,
and re convened on the said 7tL day of
January, 1890, and that during the inter
vening time no actual session of either
house was held, and no public business
transacted.
The constitution fixed the compensation
Of members of the legislative assembly at
$500 per diem, and by various laws and
resolutions the pay of employees has been
hNed at a certain amount per diem. The
question then simply is, are the members
n employees of the legislative assembly
by law for constructive services, where no
actual services or attendance has been
rendered?
There seems to be an opinion more or
less prevalent that, while a person en-
ployed at a fixed Fl perday by an individ-
ual, would not expect or be entitled to pay
for services not rendered, a different rule
l am not aware, however, of any prilici-
pie OF law or decision of courts that sane
tons any such distinction. If the trainers
OF the constitution had intended that mem
bers of the Legislative assembly should re-
celve $500 per day for the whole session
without regard as to whether the session
was continuous or not, then the compensa-
ton would undoubtedly have been fixed at
a certain gross amount for the session; and
the fact that compensation was fixed by
the day clearly shows al intention that
they Should only receive pay for the days
that are considered a part of a continuous
session. To hold otherwise would estab-
lish a dangerous precedent for if the legis-
latlve assembly can adjourn for eighteen
days and the members draw their per diem
during said adjournment, upon the same
principle it could meet and sit ten days.
adjourn for forty days, %reconvene and sit
ten days more, and collect pay for the
whole sixty days.
There is no doubt but that under the es-
tabli>hed GUSTAV and Usage of Legislative
bodies, so long assented to that 1t has the
force and effect OF a positive law, they may
take temporary receSses of adiournmentS
for a period not exceeding three days; and
it Is by virtue of this custom that Sunday
is counted as a legislative day, although
actual sessions are not usually held on
that day:
|, therefore, hold that neither the mem
bers nor employees of the legislative assem-
bly, are entitled to per diem for the days
between December 10, 1889, and January Z,
1880, and that you have no power or author
lty to audit such accOun nor draw war
rants on the treasurer therefor. This con-
clusion is sustained by the supreme courts
of Wisconsin, Alabama and the opinion of
the Encouragement of Minnesota: and |
know of no decision to the contrary.
State Elk Rel Boyd VS.. Hastings, 10Th Wis. 1853.
tx Parte Pickett "a Ala. 95
Opinions Acknowledgement of MINI, pape q.
Respectfully submitted,
GEO. F. GOODWIN,
1o- N.l