Brookings weekly register. (Brookings, Brookings County, S.D.) 1898-1903, 1899-04-27
|,,ts,estiog Letters Written by
| Governor Lee and Attorney
General Pyle.
.,,w 70 Secure Conviction Of Kirk
ps;,,ios for Embelz!ement Of In.
terest on State Funds.

y 80. - Of South Dakota. A fairly comprs-
...i,e kpowledge of the attitude OF the
,anh,eans is indicated by the letter of
,.,orney. General Pyle, while the reply OF
r'rorror Lee sets forth his opinion clearly.
na following is the correspondence:
S.te of South Dakota, Attorney Gener-
-. alAice. Pierre, February Z, lS99:-lion-
s,able Andrew +. Lee, Governor OF South
Dakota.
Dear Sir -
/ bea to acknowledge receipt OF your
i,rS,;cation of Januarv % relating 10
Sa rstiring treasurer, X. G. Phillips, and
sssos,ng horizons OF your message to the
iagsIat,,re' together with report OF Public
pssm;ner Tay.or which was included IN
.aHr renort TO the legislature, and also en-
,ospg a supplemental report OF Marls
Tylor. pubic examiner, bearing date OF
January q, 1879
After receiving this communication from
ran | called at the executive chamber and
,,,Iisd your attention TO sections 95 and
S of our compiled laws, and also called
.'our attention 10 the fact that your COM
snnn;cation 10 me contained no specific re-
on,st that take any action IN the matter.
H. that time YOU suggested TO me that If,
nnop further examination OF the communl-
eati0n. | deemed that 1t contain no suifl-
rept request that ] communicate my con-
rastops to YOU on that subject in writing.
Section 90, TO which reference Is above
made, relating to the duties OF attorney
rpneral provides among other things:
aHe shall appear for the state and prose-
tute and defend all actions and proceed
Ings, civil or criminal, in the supreme
court in which the state shall be interested
"a party, and shall also, when requested
BIZ the governor or either branch of the
lersat,lre, appear for the state and pros
ecute or defend in any other court or be.
fore any officer in any cause or matter, civil
or CRIMINAL in which the state may be par
a ty or interested" and Section 96 to when
request Of the governor, auditor or treas
urer TO prosecute any official bond or any
contract in which the state is interested
upon breach thereof, and TO prosecute
and defend for the state all actions, civil
br criminal, relating 10 any matter connect
ed with either Of their departments
In view OF the fact that any section by
this office in relation to the subject OF
your communication would involve pro-
eeedlngs in the circuit courts of this state,
and probably in courts in other states, |
thnk that The statute contemplates that
before commencing proceedings | shall be
requested TO do SO either by the governor
or either branch OF the legislature, or by
the auditor or treasurer.
In tins particular case think there are
SPECIAL reasons for requiring this request
before commencing any proceedings what
ever, which are found in the fact that from
your communication 1t appears that on Oc-
tober IL, 1898 the deposits of the state
treasurer were IN nine erept banks ana
IN three different states, and any vigorous
prosecution OF the matter would necessarl-
hn tAly g.E
probably supplemental suits to obtain dis
coyery IN at least two of the states.
Furthermore, it is very likely, though
your communication does not dis
close whether that would be true or not,
inat deposits during the four years Mr..
Phllhps held he funds, may have been
contained in still other banks located at
inherent places. and the expense of asc.r-
alhlng all the facts necessary to a protec-
aon OF the rights OF the state will Involve
a large expense, and more than the ordin-
Iy expenses which have been appropriat.
BY the legislature for the use of this
once, and 1t would be futile, in my judg.
mehi, 10 commence any proceedings with
wv haylng ample means to prosecute the
Ease vigorously and take whatever steps
were necessary to ascertain the facts ~
sterenee to the payment Of interest,
Snelher IN tle state of South Dakota or
elsewhere.
There is another view of the matter
shleh wish to lay before you at this time,
s may have some influence and some
bearing upon your decision, or the decision
" " me legislature, to make request for
n nse institution OF proceedings against Mr..
isnHps and his bondsmen for the recovery
We interest which he may have recelv.
gu upon the state deposits.
IN your communication to me you cite
Seqon II OF Article ii Of the constitution
me state w..ich reads as follows: "The
anhg OF proht, directly or indirectly, out
80 aate, county, city, town or school dis.
so.s money, mo or using the same for any pur-
pgse not authorized by law, shall be deem.
~ ~ felony and shall be punished as pro.
.ni aeu oy law This provision of the con-
'ulon OF the state of South Dakota IS
sltact duplicate Of Section l3. Article 10,
'ne constitution of the state of Colora-
70 except the words "by any public Off
o are Incorporated into the section Of
~ constitution, the provision of the con.
l"non olnon Of the state Of Colorado being as
!, vSS The making Of profit, directly
~ incorrectly out of the state, county, city,
.eSn Or school district money. or using the
,me Tor any purpose hot authorized by
s w any public officer. shall be deemed
q BY law" peN - p''''
| III III , sne case Of the State W. walsen, IL
A. c Nv decided in 1892, the supreme court
n vSlofado, after an elaborate discussion
Van. sen ooth the state and the treasurer
MAN.; represented by able counsel, and by q
| tiH.ous tice Hss decision OF the court, Chief Jus
S hayt delivering the opinion Of the
S wor decided that where the ssate treas.
msn.n mao received interest upon the public
conss',, contrary to this provision OF the
t'aiion tan aon the state had no cause OF &C.
I'm, sna could not require the interest
ia M. eceived from the treasurer. On page
a,, une opinion the court says:
IN. ae na constitution declares that the max.
49, proht by him, either directly or In.
dsSa' out OF the public funds shall be
h. relony and punished as provided
| ps, his provision recognizes that a
/ NJ, may, in fact, be made by the treas
sia' although it declares the making there
hv '1ony 10 be punished as provided by
70 hs Ioes not provide that the profit
stase "dae shall inure to the benefit OF the
bo~s,by the next succeeding section,
kei.Is.r, power Is expressly lodged in the
renlstne 70 make reasonable and proper
uS uSons ss regarding the safe-keeping
prov;.;a cement Of public funds. Ample
upon ~ " the premises Is here conferred
suhs..ne ne legislature. IL was not until
term rqussnt s TO the expiration of Wa!sen's
srerc;s1, once that the general assembly
slect .o this power. The continued ne
a. ,c.n act IN the premises was clearly not
a. iut o. an over sight on the part OF
msrt "maSing department OF the govern
Tn1 IL was called ~ tba ,tt.rt:s.s s az.