The record-union., 1897-01-07
JUDGE CATLIN WAS UPHELD.
And the Supreme Court Commissioners
0Verruled.
T. A. Lewis to Receive His Salary as
Expert to the State
Examiners.

the case OF InOmaS "A. Lewis (plalnuT1
and respondenD against State Con-
troller E. P. Coigan was received in
this city yesterday 1t will be remem-
bered that this case was first tried by
Superior Judge Catlin, who gave judg-
ment for the plaintiff From this judg-
ment an appeal was taken, and the Su-
preme Court Commissioners after a
hearing rendered an opinion which was
confirmed by Justices Garoutte, Van
Fleet and Harrison, reversing the judg-
ment of the Superior Court.
A rehearing was applied for and the
case was submitted some time ago. The
Judgment now given by the Supreme
Court in which two of the Justices who
confirmed the former judgment reverses
that action, and confirms the judgment
of the Sueprior Court.
The opinion of the Supreme Court
written by Chief Justice Beatty and
concurred in by Justices Mcfarland
Van Fleet and Harrison, recites the fact
that the respondent had been appointed
by the Board of Examiners as an ex-
pert to them, and that the board audited
and approved his claim for his SER
vices during the month of July for
S166 &c that the Controller upon
demand refused to draw his warrant
on the State Treasurer in favor of the
plaintiff on the ground that there was
no law which in express terms creates
the office of expert to the board, though
an appropriation for the salary had been
made by the Legislature of 1895.
The court comedies the contention OF
the Controller that an office cannot be
created by the general appropriation
bill But" says the court lit does not
seem that there was any attempt to
create the office of expert, the whole
scope of this portion of the Act being
to make an appropriation for the pay
ment of his salary and expenses, a per-
fectly proper appropriation, if there ex-
listed any authority on the part of the
board to appoint or employ him"
After reciting the law in the case the
opinion goes on to say: 1T seems to be
agreed that the question to be decided
in this case is the same that would
have been presented if the Board OF
Examiners had employed an expert
without any previous appropriation for
his salary, and the Legislature had
afterwards made an appropriation to
pay the compensation stipulated or al
lowed by the board. In either case the
validity of the appropriation would, as
above stated, depend upon the ques-
ton whether the appointment of such
expert and the agreement for his com
pensation was expressly authorized
within the meaning of Section 81. This
question is not a new one"
The case of Rankin VS.. Colgan is
quoted in which the Act appropriated
$3.50 to pay for services rendered in the
State Treasurer's office. The Governor
had not been authorized, but it was pre-
suned a proper occasion had arisen,
and he made the appointment in pursu-
ance Of his implied power to adopt ne
cessary means for the discharge of his
duty to care for the property of the
State
The principle recognized in that case
was: The rule respecting such powers
is that in addition to the powers ex-
pressly given by statute to an officer
or a board of officers, be or it has by inn
plication such additional powers as are
necessary for the due and efficient exer-
else of the powers expressly granted or
ute granting the power"
This statement of the doctrine, the
opinion declares, ''is abundantly sus-
tanned by the decided cases everywhere,
and is so universal and undisputed that
we deem it unnecessary to cite authori-
ties" Two cases, however, are referred
to Bateman VS. Colgan. III Cal. 5S7,
and Harris VS.. Gibbin, 46 Pac. Rep.
| <,s+ ie,
closely analogous to the case in hand,
and the decision disposes of one of the
principal arguments advanced by the
| appellant viz: That if the Board of
| Examiners has the implied power to ap-
point an expert, the Board of Supervis-
ors must be conceded the same power
I a consequence which he contends is alb
surd. But in that case it was held that
the Board of Supervisors has such
power, because the employment of an
expert is. or in many cases may be
necessary in order to enable them to
perform the duties imposed upon them
by law
IF this is so the argument holds good
that the Board Of Examiners must have
the same power, because the proper dis
charge Of their duties may involve the
employment of an expert. They are a
board of audit, and they must examine
| not only the great mass of claims
against the State, but also the books
and accounts Of many public institu-
| tions. as well as those of the Auditor
and Treasurer Of the State
AS long ago as 1874 the former Su-
preme Court of this State
held that the duties devolving upon the
| board required for their dis
| charge the skill of am expert account
ant; and the Legislature in various
Acts has partly authorized
the employment of experts by the
Board of Examiners.
1T cannot be denied, therefore. that
| the duties imposed upon the Board of
Examiners and the corresponding au-
thority conferred upon them by the ex-
press terms of various sections of the
| Political Code and other statutes de-
fining their duties are such as may in
| volve the employment of an expert for
their due and efficient discharge. and it
follows on the principle of the cases
above cited that they have the implied
power to employ one when necessary
Independent of the clauses of the APP
preparation Act above recited
1T does not follow from this view
that their authority in the matter is
unlimited and unrestricted, as appel
liant assumes It would be. On the con-
| trary, whatever they do is subject to the
approval Of the Legislature
He is not an officer with a fixed term
| of service and a salary ascertained by
| law. but mere employe of the board
holding his position at their pleasure
| and entitled to such compensation only