The Monticellonian., 1895-02-01
THE LAW IN THE CASE.
As Given by Ex-Attorney- General Clarke Regarding the Payment of LegIala-
 tive Committee Clerks, Etc.
LITTLE ROCK, Jan. 1, 1895,

DEAR SIR-in answer to your communic@ tion have the honor to report as follows:
 l. am unable to find any law which makes 1t the duty of the secretary of state, state land commissioner or attorney general to make biennial report to any other officer or tri- bunal. The law provides for certain quarterly reports from the land commissioner and secre- | tary Of state to the governor, and the tnforma | tion contained h these reports may be utilized by the governor in connection with his message l to the general assembly, In order to do this he may have such quarterly reports printed I In addition to these reports the governor l has power. under the Constitution. to chl i upon the heads of any of the executive de. | partments for information concerning the f duties and transactions Of their respective | offices, and this information he may have pub i lished and printed. And when so printed 1t must be done under contract for the purpose previously entered into. Other than as here | indicated there is no duty imposed upon the i officers named to make any report to any other officer or body, nor at any stated inter i vals And if any of these officers make for [ nal report Yoluntariy y, at any other time, there Is no law for imposing upon the state the ex pense of printing and distributing the same. As to whether or not the state Is, under ex lstlnE laws legally chatgabie with the pay | ment of clerks of committees, and for news | papers and postage stamps, We have at this { time no law which authorizes the appointment of clerks of the several committees organized by the respective houses of the general assem ply. The general assembly has power 10 provlde for the appointment Of as many clerks as in its Judgment may De necessary; there is no limlta ton either as to tho number to be employed or the salary to be paid to them. But neither house, acting separately and distinctly for itself, has power to create committee clerk ships and consequently Ho power to impose upon the state the burden Of paying any such as may be employed by resolution By section the duty Of the general assembly to TX the salaries and fees Of all of onlcers in the state and to "hx the ployes of the different department. of the state Up to the present time, this require ment has not been compiled with. far as the department concerned. Way that will authorize the employment and payment out of the state treasury of commit tee clerks, although the subject Of the char F aracter and number Of officers and empiOyes of | the several branches Of the general assembly | has been dealt with somewhat ih detail. The E failure to include committee clerks among the | authorized employees Is significant of a purpose ! not to have them employed at the expense of the state, sections 354S, etc, Sandeils < Hills ! Digest Until a statute is enacted authorizing f the employment of such clerks, you have no l legal right to draw your warrant on the treas ury in payment for services said to hayo been ! rendered. by persons as committee clerks. A ! resolution is wholly ineffective for the purpose of conferring this authority upon you. This Is f plain under section 29 Of article of the con stttutton which is as follows:
 "Seetion 29. No money shall be drawn from | the treasury except in pursuance of SPECIFIC approprla tion made by law, the PURPOSE of f which shall be DISTINCTLY stated in the bill, . and the maximum amount which may be | drawn shall be specified in dollars and cents. .
 When the general assembly shall pass bill | providing for the number Of clerks that may be . employed In each house, and liking the salary | to bo received by them, and shall then make d specific appropriation for the purpose of pay ing these clerks, il will become your duty to draw your warrant n their favor. or course, the constitution gives to each house the ex elusive right to appoint its own officers. But the power to appoint 10 an existing onlee or place is quite distinct from the power to ere ate the ofiice or place 10 be thus filled. The . power to create the eierkshtp is with the gem erat assembly. while the right to appoint some one to Al 1t Is with the particular house in which the clerk IS to serve.
 In the case of the State vs. Wallichs II Ne Draska, 439, D. C. l6, N W. Rep, 4ol, the su- preme court of Nebraska considcrei queS ton very similar to this branch of your in quiry, and it's decision involved consideration of constitutional aud statuatory provisions sub stantially the same as those which govern in | this state. In disposing Of the case the court in its opinion says: It will not be claimed i that without additional legis ation either . house can employ clerks of committees and direct their payment out of the public treas urg. The legislature although the aw-'naking | power is itself regulated and controlled by | law. Therefore. fl additional employees are desired the law must be so framed as to au. thoriZe their employment, There is no statute fixing tho pay of clerks of commit tees or authorizing them to receive SS or any other sum per day. The certificate Of the pre- siding officer of either use stating that the party mentioned is entitled to compensation per diem and mileage to the amount al lowed by law does not authorize the auditor to draw a warrant for any sum whatever, un- less the statute has fixed the amount of such compensation, which fin the case under consid- eiation 1t Is clear has not been done"
 "A person accepting an election to either house of the legislature impiedly pledges him. self to devote his time and services during the session to the interests of the state The duties are of such a nature that they cannot be performed by proxy. The members are chosen because or their supposed fitness for the position and their knowledge of the wants Of the people of the state. and are ed to represent th ir views in the passage Of bills. These services must be personally performed by the members; and clerks Of standing com mittees of the legisl lature are unknown to our law. And until such law is enacted there Is no authority either to employ such clerks or to pay for their services"
 Nor can it be said that the expense of em- ploy ng committee clerks may be provided for under general provision to pay contingent expenses of the two houses. No expense is contingent in the sense that this term Is used in the law which is not incurred without de sign, foresight or expectation" The very fact that the number Of the clerks and the compen- sation that each is to receive Is fixed by reso- lution passed by each house before the em- ployment of the clerks shows that this lia' bility is in no wise unexpected or contingent upon any emergency casually developed
 Il. As to your authority to draw your war rant in payment for stamps and newspapers furnished to members of the general assembly under resolution of the respective houses, in my opinion the general assembly has full au- thority, by bill passed as directed by the con. stitution, to provide for the distribution Of newspapers, and as a means of facilitating thls distribution to supply the necessary postage. l do not think such a distribution to be of a nature that would justify the assumption that it can be resorted to as means flor the pay ment of the just debts of the state, for defray ing the necessary expenses of government to sustain common schools, to repel invasion or to suppress insurrection' and that therefore, under the requirements of section Sl of article of the constitution, a bill providing for such djstrit utton of newspapers must be passed by majority of two thirds of both houses of the general assembly.
 The general assembly may pass such law for the reason that this body may do anything which is not expressly or by necessary implication prohibited. It may be further said in connection with the distribu- tion of stalnps to members, that neither house. nor the general assembly, for that mat ter, can donate to q member of the general as- sembly any given sum in postage stamps to be used indiscriminately in his business, private well as that connected with his office. This would be to add to the compensation Of the member after his election which is prohibited by section 16 of article of the constitution
 Under our laws as they now exist 1t is your duty to refuse to draw your warrant on the treasurer for the payment of claims for ser vices rendered as comm ttee clerks, for news papers to be distributed to members or for stamps for members. If the general assembly at it's ensuing session shall enact a statute lawfully imposing these matters as proper charges on the public treasury, it will be your duty to comply with it's provisions without questioning it's rolicy But you will not re gard resolution of either house as proper debt agalnst the state Very respectfully
 JAMES F. CLARKE Attorney General
 Constitutional Amendment.
 House joint resolution No. 2, by MT. Newton,