The Portland daily press., 1891-03-28
THE GOVERNORS ACTION WAS RIGHT.
His Official Duties Do Not Include
State House Building,
And If He Undertook This Additional
Work,
he Is Entitled to Receive compensa-
ton For Ii All.
Especial to the Press.


Inc committee on public buildings. to which
'ne report Oh the commission was referred
sald nothing. but. in order that these accusa.
tions should not receive apparent justifica
tlon from the inaction of the committee. thew
instituted an investigation into the law and
the rights and duties of the Governor under
the constitution. This investigation was
placed in the hands of Senator Spear as a
subcommittee and he has made a palnstak.
Ing and exhaustive examination Of the SUBJ
Ject. His report, which has been adopted
and made the report of the full committee
shows by the many legal authorities which
are quoted, how groundless was the charge
that the Governor had gone beyond his duty
to the state In taking this salary. The SER
vice OF the Governor was entirely outside the
kind for which under the constitution he
cannot receive compensation. But this is
not all. Senator Spear has also examined the
question Of the meaning of the term sex.
penses" in the resolve creating the commits
sion. and any doubt as to the right of the
commissioners to receive compensation under
the resolve would seem to have been settled
for fair-minded men. However, fair-minded
a1oh hofO PoAu fCAJ hbtiO dttoutlOu W bueSo
stories any way. They were circulated here
for purposes which would not recommend
themselves to impartial men. Mr.. Spears
report follows:
To the Chairman Of the Conanaittse on Public
Buildings:
In accordance with the instructions of YOUR
committee to me to inquire into the legality
of the expenditures of the commission cre-
ated by the laws OF 1889, to supervise the en-
largement of the State House. have per-
formed that duty and herewith submit my
report.
The report of the commission to the legis-
lature would. upon its face. indicate an over
draft OF the appropriation for the enlarge
ment Of the State House, but find, as a
matter OF fact, the commission did not over
draw the appropriation, and that the appar-
ent over draft results from the expenditure
from the contingent fund, and the appropria-
tion for furniture and repairs, said over
draft being expended principally for the
boiler house and furnishing the House of
Representatives. This leaves but two ques-
tions for consideration. Did the commission
have legal right under the clause in the re-
solve which says land for the reasonable ex-
penSeS of the commission" to take salaries.
whether the expenses were reasonable. that
is, too high or too low, Is question of fact,
not OF law, which l am not required to dis
cuss. The question then arises, is the
phrase reasonable expenses" or so far as
the law is involved, the term expenses as
used in the resolve limited merely to the
commission, or is it broad enough to cover
the salaries of the commissioners. / think
1t covers both. This is undoubtedly the con.
struction the two able lawyers on the COM
mission put upon the resolve, and probably
without any examination of the authorities
but on the generally accepted principle that
neither states nor individuals expect to re-
celve the benefit OF a valuable service with
out due compensation therefor.
In the absence of any authority to the
contrary, this proposition might properly be
left with the construction placed upon It by
the lawyers on the commission on the ground
that in the absence of such authority the
opinion of the lawyers in the commission is
as good as the opinion of equally good law
yers off. But there is both authority and
grecedent for the action of the commission
in taking salaries.
In support of this proposition Mr.. Spear
cites the opinions of the Attorneys General
of the United States, volume 4. page 577; I;
Nathan Clifford, Attorney General. %, Court
Of Claims, 2oa-277; Dunwoody's case. Con-
tinuing. Mr.. Spear says; Salary and com
pensation fer services are expenses. During
the entire administrations of Washington,
John Adams, Thomas Jefferson and the first
term OF Madison, sometimes by special act
and sometimes In the general appropriation
acts, the provisions for the diplomatic corps
consisted of so much money "for the ex-
penses OF foreign intercourse" to be expend.
ed in the discretion of the President. Un-
der these acts the President fixed the sala-
ries of all our foreign ministers, consuls
and ENJOYS, and these salaries were
paid out of the sums thus appropriated
Attorneys General, Opinion 1856, ambassa-
d0rs and other public ministers of the United
States, VIM. L. Marcy, secretary of state
Caleb Gushing. attorney general. In Byers
the court. Davis, judge, refers to this opinion
IN defining the term expenses and says:
During the whole of Jefferson's term and part
OF the terms OF other early presidents, Congress
annually appropriated sum in gross for the ex-
penses Of intercourse with foreign nations, leav-
ing 1t to the epecutive to fix the salaries of its
several appointees.
In Dixon VS.. Bell, 1st Starkey,N. p. c. 2S7,
| in case involving the services of physi-
| clan in an allegation that the plaintiff had
| been put to great expense for medicines, ETC.,
| the court say:
| The word "expense" docs not necessarily
| mean expense OF money for expense of his
moneys, is phrase well known to the law and Il
| the plaintiff had been solicitor and had spent
his time in personally investigating the title. he
might have truly alleged that he had been put to
| expense.
There are numerous other decisions which
| show that when money Is appropriated "tc
| pay expenses it must mean those expenses
which are necessarily incident to the work
| 10 be DONE"
deem these citations sufficient to establish
the legal proposition that the commission
ma had right to pay pay themselves salaries under
The second question involved in connec-
the Governor of the State could
legally take compensation for his SER
admitting that the other members of the
commission could legally do so.
No objection can be based on section 6, ar
ticle of the constitution. which says:
The Governor shall at stated times receive for
his services compensation which shall not be
increased or diminished during his continuance In
Office.
Receive for his services" as what? AS
attorney general? No. AS secretary of
state state? No; Simply ySY and solely for his ser.
have reference to no otner Office or employ.
ment. He received as commissioner no ad.
| dition to his salary as governor. In Lowe
VS.. Bracket, AZ Cal, 1854, the court say in re-
gard to the right OF the attorney general to
| receive compensation for services as exam.
liner. in addition to his salary, under a con-
| stitutional provision In substance like was
| that
After having thus performed his service, which
under the constitution is wholly foreign to his
| office and which is not and cannot become a nars
of his official duty as attorney general il the leeis
lature has seen fit to compensate him for this an.
official service is no constitutional impedment IN
| hinder them from so doing.
| Article 8, part 1st. section 8 of the consti
tuition reads:
No person holding any office or place under the
| United STATES, this state, or any other power
shall exercise the office OF governor.
Was the position ON the commission unde,
| the resolve of 1889 an "office or place. within
| the meaning of the constitution. l think not
| 1t Is obvious that office and place are used
| in the constitution as synonymous terms and
/ apply to a constitutional Office. Article o
| section of the constitution reads:
Eyerylperson elected or appointed to either O.
the places or Offices provide in this constitution
| etc.,
which very clearly confirms the above inter
| probation.
In Brown VS.. the People, As Ill. 3s7, the
| court says:
The only question presented by the record il
| this: Are the commissioners appointed by tn,
| act of February 25, 1867, entitled an act TO pro
| vide for the erection of a new State House, 0ffc
es within the meaning OF the second section Of lh
23d section of the fifth article OF the constitution
| of the state"
After making distinction between an of
] fee and employment and that of the com
mission came under the latter, the court fur
ther says:
No tenure of office Is fixed by the act, no per
manepcy is attached to It, nor Is there the slight
| est connection with the exercise of any portion o
| fhe executive power and no intention manifesto,
| in the act itself to establish an ONCE. The an
pointees are to perform a duty single in tsel
| which the legislature could not OF and by itsel
perform; that is, to superintend the erection OF
state house and disburse moneys the legislator,