The San Francisco call., 1895-08-03
REPLIES TO MR.. COLGAN.
Attorney General Fitzgerald
Says Their Appointment
Was Legal.
MAY NOT END THE MATTER.
A Belief That Severy and Lewis VIII
Have Difficulty In Drawing
Their Salaries.

SACRAMENTO, CAL, Aug. 2.--Attor-
ney-General Fitzgerald has answered the
two letters of Controller Colgan in relation
to the legality of the appointment of Fred
A. Severy as printing expert and Thomas
A. Lewis expert to the Board of Exam
liners, but indications are that this does not
settle the matter, and although the Con-
troller says he has not made up his mind
as to what he will do, there is no doubt but
that Messrs. Severy and Lewis will have to
bring the matter into court before they get
their money.
This controversy is one of the absorbing
topics of conversation about the Capitol
to-day. and it is said that if the Controller
is correct in the stand he has taken in the
matter, the elevator boy and whole lot
of janitors are drawing their pay illegally.
This, however, the Controller denies and
says that they are matters of necessary
expense and it does not require a statute
to create the Office, while these experts are
not necessary and are endowed with ex-
traordinary powers, and it does require
statute to give them Office, mere appro-
priation in the general act not being suffi-
cient.
Attorney-General Fltzgerald's answer to
Mr.. Colgan in regard to Lewis is contained
in the following letter:
SAN FRANCISCO, July 80, 1895.
Hon. E. p. Colgan, State Controller, Sacra-
meHtO, Cdl.-DEAR SIR: l am in receipt of your
favor of the Goth instant concerning the ap-
pointment of Thomas A. Lewis as expert to the
State Board of Examiners and requesting an
opinion from me as to the legality of such ap-
pointment. AS understand your letter you
question the authority of the board TO appoint
an expert, as, in your opinion, there is no
statute creating the Office of expert to the
Board of Examiners" nor "any law authoriz-
ing the appointment or employment OF such
an officer"
In this 1 think you are mistaken. The law
imposes large number of duties upon the
State Board of Examiners, among others those
of counting the money in the treasury, ex-
amining the books and accounts of the Con-
troller and Treasurer and auditing all claims
against the State. Accounting of money
and examinations of books require the
skill of an expert accountant. Further
more, for the proper auditing of claims
it frequently becomes the duty of the
Board of Examiners to make extended
investigation into the conduct and manage
ment OF State institutions. This also requires
the skill of an expert Then, too, "in the mat
ter of approving and rejecting claims against
the State, the Board of Examiners acts
judicially," and, ''where appointment is
essential to the proper exercise of judicial
duty, the court concerned has authority to
make it,
For the proper exercise of the duties i'm
posed upon us by law, the employment by the
Board of Examiners of an expert is absolutely
essential. This necessity was recognized by
the Legislature when they made an appropria-
tion to pay the salary and travelling expenses
of an expert so employed, just as in number
less instances the Legislature has recognized
the necessity for the employment of porters
and other attaches of the minor State officers,
where employment rests on the ground of ne
cessity only and has made appropriations for
the payment of their salaries.
1 am, therefore, of the opinion that the law
vests the State Board of Examiners with an in
herent power to appoint and employ an ex-
pert, and that the appointment or employ
ment of Thomas A. Lewis as such expert was
within the scope of the inherent power pos
sessed by the board and was valid appoint
ment.
note that you say that you are "aware that
in the general appropriation act of 1895 pro-
vision is made for the salary of an expert to
the Board of Examiners and for his travelling
expenses" but that you are also "aware, and
the records of the last Legislature will show,
that the bill creating the office of expert, auth
orizing his employment and fixing his salary,
failed of passage" In this you are laboring
under slight misapprehension as to the facts
The bill to which you refer was one making
many material changes in the duties and
powers of the Board of Examiners and Incl
dentally providing for the employment of an
expert.
That bill was defeated because of the changes
it proposed in the duties and powers of the
board, but the Legislature, recognizing the
inherent power vested by law in the board to
appoint an expert and perceiving the necessity
Tor such an appointment, made provision for
the payment of his salary and expenses in the
appropriation bill subsequently passed. Re-
spectfully,
W. F. FITZGERALD, Attorney-General.
In the case of Severy the Attorney-Gen-
eral says, in letter TO Controller Colgan
SAN Francisco, Aug. 1, 1895.
Hon. E. P. Colgan, State Controller, Sacramento,
Cdt.-DEAR SIR: In reply to your favor of the
9th inst, concerning the appointment of Fred
a. Severy, as printing expert to the Board OF
Examiners, under section 679 of the Political
Code, and requesting an opinion of me as to
whether or not said section is still in force, /
am of the opinion that as the Legislature has
not seen fit either to repeal or amend section
679 Of the Political Code, that it is still in full
force and effect, and the appointment referred
to by you is valid one.
As the Legislature in abolishing the Office
OF State Printer and the system OF State print
ing by piecework and establishing the State
Printing Office and creating the office of State
Printer did not do away with the Office of
printing expert to the State Board of Ex-
aminers. it must be presumed that it was the
belief of the Legislature that there were still
duties for the said expert to perform, and
that, therefore, the section permitting his ap-
pointment was continued in force. The mere
fact that no appropriation has been made for
the Office during the years mentioned by you
does not indicate an intention on part Of
Legislature to abolish the office, as the section
carries an appropriation for his salary. Re-
spectfully, w. F. FITZGERALD,
Attorney General.