Morning journal and courier., 1891-06-05
OUGHT TO PAY THE BILL.

That is the Meaning Of Corporation Counsel Dr1scolps ,Opinion in Ref :. erence to the Payment of Judge Pickett-That Freight Biu for the Road Roller. - The corporation counsel's opinion re- garding the payment of Judge Picketts bill was presented and read before the board of finance last evening. The opin- ion, which in clear manner sets forth the city's obligation to pay the bill, is given in full as follows:
 THE CORPORATION coUNsEL's OPINION. To the Honorable Board of Finance: Gentlemen-You asked me to inform you whether Hon. Rufus s. Pickett, who has continued to act as judge of the city court of New Haven since April 1, 1891, and has presented bill for salary for the month of April, 1891, "can legally draw the salary usually allowed to the judge of said court" and whether the board "can rightfully approve for payment bill pre- sented by said Pickett"
 It is admitted that Judge Pickett was the duly appointed and qualified judge of the city court up to April l, 1891, and that no one has been appointed to succeed him.
  that "the judge and the assistant judge of said city court shall be appointed by the general assembly. They, and each of them, shall take the oath provided by law for judicial officers, and shall hold office for two years from the date their appointment takes effect, and until their successors shall be appointed and sworn in their stead" ~
 It is stated in Rents commentaries, twelfth edition, vol. ?, page 295, that ''in case eof public officers, who are such de facto, acting under color of office by holding over after the period prescribed for new appointment then acts are held valid as respects the rights of third persons, who have an interest in them, and as concerns the public, in order to prevent failure of justice"
 But it is claimed that the provision of the city charter is repugnant to article XX of the amendments to the constitution, adopted in 1876. The city charter is a public act passed by the legislature in 1881, five years after the adoption of the constitutional amendment referred to, and presumably passed with full knowledge of that amendment.
 Our supreme court says in the case of state vs. Carol, 3s Conn.,, page 472, that "Every law of the legislature, however re-
 
 the semblance of authority, but the force of law. It cannot be questioned at the bar of private judgment, and, if thought un- constitutional, resisted, but must be re- ceived and obeyed as to all intents and purposes law, until questioned in aad set aside by the courts.
 This principle is essential to the very existence of order in society.
 In the case of State vs. Con1on, just de- cided, in which the right of Judge Deming to sit as judge in the court of common court says that due regard for the public convenience and security will not permit, and authority of any judge, by whom a court is held to be disputed in any sum- mary manner.
 It is conceded that Judge Pickett per- formed the duties of the city court during the month of April, the time in question, and that the city received the benefit of his services, and that the fines imposed by him and paid were turned into the city treasury.
 In view of these facts and the law above quoted am of the opinion that Judge Pickett can legally draw the salary usually allowed to the judge of said court, and that your board can rightfully approve for payment the bill presented by him for 5uSn 6cHVICoS. IhcSpcCtluuy SuUIulGEeO-
 0. T. DRIscoLL, Corporation Counsel.
 The members of the board, or at least nearly all of them, were in favor of sign ing the bill at once when the clerk had finished reading the opinion from Attor- ney Driscoll, but an unfortunate discus sion arose which aroused the partisan spirit of the board As result the bill received only the signatures of the repub- lican members, namely: Messrs. Cleve- land, Hitler and Beers, and there the mat ter stands. His honor expressed himself, saying he thought the judge ought to re- ceive his money, but did not under the circumstances wish to put his name to the paper.
 That bill of $50.40 for freight on the new road roller came up before the board, but was not signed. Action was deferred until after the next meeting of the board of aldermen. When the machine first came and the railroad company sentsword the freight was due, the city auditor sent letter guaranteeing it would be paid, and on the strength of that it was delivered.
 MT. Luke felt not little sore over the action taken, because it placed him in an unpleasant position. He acted as he did under proper authority, and week before up.
 This act of the city auditor does not in dicate that the city will have to pay the bill, for if the roller is accepted the amount will be deducted from the price and if it is not accepted the city can look to the company for the money.