The Wichita daily eagle., 1895-11-29
DAWES PATS COLE
ATTORNEY GENERAL SAYS TFE
STATE AUDITOR DID RIGHT.


Expenses of Trips or Duties Not stipu-
lated in the Statute Creating the Office
which George II. Anthony Occupies
Consequently, Cole was Right when he
Refused to Pay for the Michigan Trip
Dawes Quotes Statute Law.
Topeka, Kan, Nov. 2s.-With refer
ence TO the controversy between State
Auditor Cole and Superintendent OF In
surance George T. Anthony, involving
nrastions as to the legality Of claims
presented for payment by the latter
officer, Attorney General Dawes has
rendered an opinion to Mr.. Cole, which
Is herewith published in full. as fol-
lows:
yours Of recent date calling my at
tention to a criticism of your action IN
refusing to audit and allow claim OF
Hon. George T. Anthony, superinten-
dent of insurance, for something over
300 for expenses in attending a meet
Ing Of the superintendents OF insurance
Of the different states. in the state OF
Michigan, some time since, and for
which he asked you to draw warrant
on his contingent fund, received and
contents noted. II 1 understand your
Inquiry you desire to know whether or
not you could legally draw a warrant
Or the contingent fund Of the superin-
tendent Of insurance to pay such claim.
Or, in other words, whether or not you
were right in refusing TO audit such
claim and draw a warrant for the
amount claimed, on such contingent
fund.
in order TO arrive at a proper solu-
ton of this question, ii viii be neces-
ssry 10 inquire into the object of the
creation Of a contingent fund for the
different officers of the state, and this
will include what is meant by the term
contingent or incidental fund. In a
former opinion rendered by me on a
similar question, I used the following
language:
IAN incidental and contingent fund
are one and the same thing When
these two words are used in reference
10 a fund, the two words are synony-
nous. Webster's legal definition for
the word contingent is as follows:
Depending for effect upon something
which may not occur The word in its
ordinary sense. Webster defines as fol-
lows: Probable or liable. but not GER
In the same connection he gives as
synonymous the words: accidental, in
cidental, causal, fortuitous. If you will
turn 20 the word incidental you will
find Webster defines it as follows Hap
pening as an occasional event, without
regularity; coming without design; ac-
cidental; cauSal; ETC. Also giving as
synonymous: accidental; contingent:
causal; fortuitous: etc.
The word contingency Is defined in
American and English Encyclopedia
Of Law, page S04. as follows: AN event
which may occur; possibility; a cas-
ualty; contingent upon an event which
Is possible or liable, but not certain to
occur; that which is unforeseen, unde-
termined or depending upon something
future In the case of People VS.. Yonk-
ers, 80 Barb. PIP, the supreme court OF
the state Of New York, has defined the
word contingent as follows: a con-
tingency is a fortuitous event which
comes without design, foresight, or ex-
pectation. a contingent expense must
be deemed to be an expense depending
upon some future, uncertain event.
Said fund can only be used for the paw
nent Of expenses which may be in
CURED in said office and of which the
legislature had no knowledge and could
not at the time have had knowledge"
Now, the office Of superintendent of
insurance was created by the legisla-
ture or the state Of Kansas and by such
legislature, the person filling such Of
ice was given certain duties to perform
and he was clothed with certain DOW
er by the law creating such office. The
law provides what his salary shall be
what clerks may be appointed, provides
for an assistant for his Office. and pre-
scribes the duties Of each Of these par
ties. This is an Office created by the
legislature and the person occupying
the position must look to the statute
ana TO the statute alone for the DOW
ers and duties. He has no duty TO per-
form and no power TO act save only
such as are given him by the statute.
This being the case, he has authority
to expend money only in the line of
duty plainly marked out by the letter
Of the law creating such office. Para
graph 664e, General Statutes of 1889.
reads as follows:
The superintendent Of insurance shall
perform all the duties imposed or devol-
wing upon him by the law relating to
insurance and the insurance depart
ment, and all other duties which are
or may be required by law.
thapter so Of the general statutes
or 1879, prescribss the duties of the su-
perintendent OF insurance. Now If
in the performance Of any OF thesa du-
ties. something should arise which was
unforeseen by the legislature at the
time il was in session, and Of which
The legislature could not have hsd
knowledge s. the time Il was in session
something requiring the expenditure OF
money 10 carry into effect the duties
prescribed in chapter so Of the general
statutes, the suHerinten Of insur-
ance would have the right TO meet such
emergency perform such duty. and
draw on his contingent fund TO pay for
me same. The contingency which au-
thorizes the expenditure Of money must
ever be a contingency or incident aris-
ins IN the line OF the officers duty. No
where is there any provision in the law
prescribing the duty OF the superin-
iendent Of insurance which REQUIRES
him 10 attend any meeting, either with
IN or without the state. ha may be
known as 'NaiOnal Association OF In
surance Superintendents or meeting Of
any other body or bodies OF men. If the
superintendent Of Insurance saw II; TO
attend such meeting or thought that
he would be benefited thereby, the set
o. attending was voluntary upon his
part and expenses attached thereto
saould have been paid by himself indi-
Nlduaily, and not by the state Meet
iASS OF this kind are occurrances. that
can oe and generally are known hy the
people. and by the individuals comnos-
Ing the legislature, II was something
that the superintendent OF Insurance
could have foresesn and II Il had been
the intention OF the legislatures hst
money should be drawn from the treas
uTy 10 pay the expenses Of f-at;endlug
such meeting. the legislature coul5