The record-union., 1895-09-28

authority of the creative Act and the ap-
propriations included in the Genera
/ Appropriation Act of 1895. Very respect
fully, E. 2. CoLGAN, Controller.
CoLGAN's LETTER OF INQUIRY.
SACRAMENTO, February 19, 1894.
Hon. W. II. III. Hart. Attorney q en-.
erdt, San francisco, CdI.-DEAR SIR:
am in receipt ola claim from John A. Kid
| der for his salary as Debris Commissions
under the Act approved March "A. 1885,
| (Stats. 1893, p. 339), from August 4, 1883
(the date of his qualification, to February
| /, 1894, at $500 per month.
AS the Act does not clearly make an
appropriation to pay the salary of the
Commissioner and his Secretary l would
! like to secure your opinion on the follow
ing points:
| have his salary paid in the same manner
as the other State officers salaries are
! paid?
Second-Does the language Of the Act
when construed in connection with Sec
tlon 1929 of the Political Code constitute
an appropriation under the decision in
Humburt VS.. Dunn, or does the appro-
prlation made by Section of the Act
cover the salaries and expenses of the
Commissioner and his Secretary?
Make your opinion as full as pos
sible in order TO cover all points in the
case, and oblige. yours truly,
Is. L. COLGAN, Controller.
GENERAL HARRIS OPINION.
SAN FRANCISCO, May s, 1894.
| Hon. E. p. COlgdn, State Controller,
| SdcrGDle1lt0-DEAR SIR: On March n
| 1893, an Act OF the Legislature, entitled
AN Act to provide for the appointment
| duties, and compensation of Debris
| Commissioner, and TO make an appro-
priation TO be expended under his direc-
ton in the discharge OF his duties as such
| Commissioner" was approved by the
Governor. Statutes OF 1898, p. 339.
Section l provides that the Governor
of the State of California shall, on or before
the first day OF January, 1894, appoint q
| competent civil engineer for period of
four years only,to be known as and called
the Debris Commissioner
Section 2 states that said Commissioner
shall, during the time he shall actually
! be employed in the discharge of his of
| fetal duties, receive compensation o1
three hundred dollars per month and his
necessary travelling expenses, TO be al
| lowed by the State Board of Examiners" j."
Section designates the duties OF the
Commissioner. Section t appropriates
! S250,0O0 on certain conditions. Section
provides that the term of said Commits
sioner shall be four years from the date
| same oath of office as is provided by law
for other State officers, and that he shall
give BOND, with sufficient sureties to be
approved by the Governor, in the sum OF
500 600, tor the faithful discharge Of his
duties as such officer.
Section q gives the Co mmissioner
power to appoint Secretary, and Section
Z provides that all the expenditures
authorized by the Act shall be subject to
the approval of the State Board of Ex-
aminers; that the State Controller is to
draw his warrant for all expenditures
not IN excess of the appropriation pro-
vlded for. so approved by the State
Board of Examiners, and that the State
Treasurer shall pay the same.
Section 1929. Political Code, reads: ''Un-
less otherwise provided by law, the
salaries of officers must be paid out oi
| the general fund in the State Treasury,
monthly, on the last day of each month" !"
Section l02J was undoubtedly enacted
because of the decision in Myers VS.. Eng
lish, 8 Cal. 34l, at which time no such
statute existed, to Obviate the difficulties
there suggested.
do not think it necessary. in the Act
under consideration, for a provision di-
recting the salary to be paid out of any
fund, for the salary of an officer, under
Section 1929, is payable out of the general
lund, unless otherwise provided for by
law,
In jerks VS.. the City of Oakland, IS
Cal. $40, the court in bank say: The
payment of salaries to public officers
monthly, when not otherwise provided
by law, Is universal in this State We do
not know of an exception"
The expenditures referred to in Sec
ton Z of the Act are the travelling ex-
penses OF the Commissioner and the ex-
penditures provided for by Section OF
the Act.
Section 673, Political Code, provides,
among other things, that "claims for
official salaries are exempted from the
| operation OF the provisions of the pre-
ceeding twelve sections" referring to
allowance Dy the State Board OF Examin-
ers. This provision expressly exempts
official salaries from being allowed by the
State Board of Examiners.
The only point upon which question
can arise is as TO the meaning of the Ian
guage used in Section of the Act, viz:
During the time he snail actually be en-
ployed in the discharge of his official
duties," etc.
Section declares that the term of Office
OF said Commissioner shall be four years
from the date OF his appointments; he
shall take the same oath OF office as pro-
vided Tor other State officers, give a
bond, ETC.
II is tueIeiOre evident mat as soon as
| the Commissioner qualities he is actually
employed in the discharge of his official
duties" The Act does not say he shall
be paid only while actually at work i'll
the field, but during the time be is en-
ployed In the discharge of his official du-
ties. Every officer is in the discharge of
his official duties when he is performing
the necessary work of his Office, there
fore, am of the opinion:
First-That the Debris Commissioners
is entitled TO have his salary paid in the
same manner as other State officers sala-
ries are paid.
Second-That the language of the Act
when construed in connection with Sec
tion 1929, Political Code, constitutes an ap-
preparation under the decision on Hum
bert VS.. Dunn, 81 Cal. 81.
Third-That Section of the Act does
not apply 10 the salary or expenses OF
! the Commissioner, nor 10 his Secretary.
Fourth-That the words: ITO be al
/ lowed by the State Board OF Examiner" ("
has reference only tc the necessary travel
ing expenses, and not to the com pensa-
ton OF the Commissioner. Yours, re-
spectfully, w. IL. Ii. HART,
Attorney-General.
A Street-Curbing Suit.