Brookings weekly register. (Brookings, Brookings County, S.D.) 1898-1903, 1899-04-27

upon the sutiiciency OF that evidence and
declare, definitely, whether In your opinion
it was possible to recover the interest
money in question. This much ! had 4
right to expect.
do not believe my duty requires me to
exercise the discretion involved in making
a request upon your office 10 prosecute any
case except 1T be after you have expressed
the opinion that such prosecution can be
successfully maintained. II, being in pos
session Of the evidence and charged with
the legal uuty OF investigating the law, you
shrink from taking the initiative, you Ger
talnly cannot expect me 10 assume, by re-
questing YOU to prosecute, full responsible
ty for the result of contest which you ap-
pear to enter with doubt, uncertainty and
apparent fear. In anticipation OF your
probable attitude upon this question
purpose.y refrained from making the sta
tutory request which you ask.
The representatives OF the people are
now IN session. The statute TO which you
refer evledntly contemplates that requests
upon your office shall emanate from the
people, through their representatives when
the legislature is in session, and that the
governor, treasurer or auditor shall only
exercise their Statutory discretion to re-
quest the attorney genera 10 appear and
prosecute during recess OF the legislature,
and when there can be no method OF thus
people of the state. And II is quite as
much your province as mne to ask the ad.
vice OF the legislature concerning the dlspo-
sition of this case. This is my understand
ing of the statute to which YOU direct at.
tention. Had the legislature not been IN
session | should not have hesttated to as
sumo the responsibility of making the re-
quest which you demand as a condition
precedent to the performance OF your Off
cial duty.
i do not desire to encroach upon your
province as attorney general, nor to insist
upon your taking a course which will be
questionable public policy or bad law, but
as you refrained from the expression of any
opinion on the alleged obstacles which YOU
call to my attention, | am impeled 10 sa,
that upon investigation OF the authorities
CITED in your letter | am more firmly CON
Vlnced than ever OF the Unassaiability Of
our right to recover the money which was
paid to Mr.. Phillips as interest on the pub.
lie funds under his control
Only one of the cases you cite, namely,
the Wisconsin case, apears to be sauareiy
in point. The Colorado case cannot be con-
sidered as a parallel for two reasons:
First-The Colorado constitution, while
declaring the taking of interest or making
of profit a felony, provides also that the
salary of public officers shall be such as Is
provided by law. These provisions, if pos
s1ble, must be construed together to give
effect to each. In the case OF the Colorado
treasurer, it would have been competent
for the legislature to declare that the treas
urer should receive the interest on the pub.
lic funds as compensation in full for his
services, The provision making protit-tak
ing felony strictly construed, could only
apply, therefore, in conjunction with some
law providing that the interest should be
turned into the public treasury as the prop
ty OF state. 1t would have been perfectly
competent for the legislature OF Colorado
to give the state treasurer the interest
money il it so desired, and if he took it he
would be guilty of felony only as against
some law forbidding him from taking It.
The Colorado constitution provides that
fees received bv the treasurer shall be COW
cred into the treasury, Acting under its
absolute power to fix the treasurers com
pensaton, the legislature could have pro-
vlded that the treasurer should receive
and account for all fees, and that these
fees should be his compensation In this
way it could have provided that he might
receive the interest-money on public funds.
In such case the taking Of profit would
not have been private or clandestine con.
tract for the personal benefit of the treas
urer, unauthorized by law, and subjecting
him TO the penalty for felony, but would
have been constituted a legal profit on the
state funds of Colorado, disposed of in
legal manner by the legislature. The Colo
RADIO court recognizes that profit on state
funds could be legally made, and, yielding
to the force of legislative Interpretation,
concludes that by failing to provide that
interest money should be paid into the
treasury, the legislature intended that the
treasurer should be entitled to the same.
Herein our own constitution and laws diff
fer from those Of Colorado. Our consti
tuition fixes the trea asurer's salary. 1t then
I1n th~t ..to Eoo
quisites; and, as If to provide a consttu-
tional penalty, and make the intent of the
law unmistakable, it provides that the max
ing of profit on the public funds shall be
felony. 1t is not within the power of our
legislature to give the treasurer interest
money. 1t can give him no fees; it cannot
increase his official salary; it can give him
no compensation except that provided in
the constitution. In Colorado the consti-
tuition left the compensation of the treas
urer entirely in the hands OF the legisla-
tive power, and that power carried with 1t
authority to give the treasurer the inter.
est money, the fees of his Office, and such
other compensation as might be thought
rightful and just. The treasurer could only
be a felon, then, by appropriating to him
self in violation Of some statute, the profits
on public funds. Your application of the
instance wherein the Colorado legislature
is judiciany declared to have purposely
avoided reference TO the state treasurer
with intent to exempt him from the opera
ton of a statute made to compel county
and district treasurers to cover into the
treasury all money received as interest on
public funds is wrong. 1t is true that the
legislature Of the state of South Dakota has
fixed the statute of county treasurers in re-
lation to interest upon public funds. Il
is true, also, that the came legislature, in
providing for the deposit Of state funds,
failed TO provide that interest received on
public funds should be paid into the state
treasury. This omission, if 1t can be call
ed such, was probably intentional. There
is no reason to believe that the legislature
was not fully advised 40 to the limitations
of our constitution, and that it was not
fully understo od that the legislature had no
power whatever to confer the interest mon
ey upon the treasurer, either through fail
Vre Of the legislature, OF by direct enact.
ment. Your confusion in the attempt to
compare the Colorado case with the ono
under discussion arises from failure to re-
cognize the decisive fact that the Colorado
constitution, unlike that Of South Dakota,
contains no provision forbidding the legis-
lature from increasing the treasurer's emol-
uments by perquirtes or otherwise.
The case OF the Colorado treasurer is par.
allel to that of q South Dakota county
Col1ralA