Semi-weekly register. (Brookings, Brookings Co., S.D.) 1894-1898, 1898-10-18
paid into the state treasury and the

any IudnlcF UncTeUy. lHC oCOiC
OF state seems, merely for the sake or
convenience, to have been made the
secretary and treasurer OF the COM
mittee, and consequently referring to
paragraphs first and second OF your
COMMUNICATION it would be my opin-
ion, being unable after careful inves-
tigation to find any constitutional
provision to the contrary, that so far
as 50 per cent Of the fees are concerned
they should be distributed by the sec
retary of state among the appointed
members of the committee and the
expense fund as the law provides.
The first two propositions contained
in your third paragraph involve a
constitutional qusstional question OF
considerable difficulty. Section l3,
article of the constitution provides:
"The powers and duties of the Sec
retary of state, auditor, treasurer,
superintendent Of public inrtructlon,
commissioner of school and public
lands and attorney general shall be as
provided by law"
Section 3 of Article II provides in
part that:
"Nor shall the compensation Of any
state officer be increased or diminish
ed during his term of Office"
Under the first quotation from the
constitution it would seem that no
limitation on the part of legislature
as to the nature of the duties it might
impose on the offices was contained
therein. 1t has, however, been held
| in California under a constitution
containing no express limitation on
the legislature in particular, that a
| limitation was necessarily implied
| from the definition of the office, and
that consequently the legislature had
no power to indscriminately burden
an officer with official duties which do
not come within that class that have
usually appertained to such offices.
And, under a provision similar to
| Section Of Article Il, the supreme
court of California has held that an
officer is entitled to extra compensa-
tion, or fees for performing duties re-
quired of him by statute and falling
without the line Of official duty ap-
pertaining to his office. Love VS.
Baehr, AZ Cal. 264.
The constitution of this state, how
ever, contains further provision
which seems to take this matter out
of the rule as established by the SUI
preme court of California. 1t is pro-
| vided by Section ,, Of Article q,
that:
"They shall receive no fees or per-
Iauisites whatever for the performance
of any duties connected with their Of
| flee. etc"
A provision similar to Section =,
above quoted, was not considered In
the California case and l am unable
| to find any reported decision in which
a similar decision has been con-
strued.
| That the constitution intends the
salary of a secretary of state to be a
full adequate and complete compen-
sation for the performance of al! his
official duties is beyond question. The
power of the legislature to prescribe
the duties Of such officer is also ex,
pressly conferred by the constitution
and having so prescribed them, it
must, in my opinion, be presumed
that such duties are the usual and
ordinary duties of such an office until
otherwise declared by competent
tribunal.
Whether or not the legislature can
compel the secretary OF state to act
as a member of the brand and mark
committee is one question, Whether
or not the secretary of state can re-
ceive additional compensation there
| for is another, and the law Of this
case seems to be laid down in
Quaw vs. Paff, "A NV. 1863 and
Supervisors VS. Knipfer, 81 Wis. sol.
In the latter case the court said:
But were it true that the selling
and assigning Of tax certificates be.
longing to the county is an extra Of
fetal duty, one not imposed by law
upon the county treasurer, We should
still be of the opinion that no extra
compensation can be allowed there
for.
II the board attempts to impose du-
ties upon the county treasurer WIN.
out the legal authority to do SO, that
officer may refuse to perform them, but
if he performs them we think his or
fetal salary is the only compensation
he can lawfully receive therefor.
For example, the last Legislature
charged the justices OF this court
with the important duty Of appoint
| ing suitable persons to revise the
statutes Of the state, and with other
duties, some of them quite onerous.
pertaining to such revision.
Those duties are entirely foreign to
our judicial functions and probably we
might lawfully have declined to per.
form them, but having performed
them, we cannot think for a moment
that we have any right to receive or
the legislature to give compensation
therefor beyond our fixed salaries as
justices Of this court. Const. Art. ~
Sec 26."
Further, and more specifically, sc
far as the present incumbent is con.
cerned, the power OF the legislature