New-York tribune., 1901-03-26
RIGHT s OF LEGISLATORS.
MIR DAvIES's OPINION OK PAY FOR SER
VICES OUTSIDE OF REGU-
LAR DUTIES.

Albany. March 25-Attorney-GeneraI Davies in
response 10 a resolution offered by Assemblyman n
Harburger. of New-York tonight furnished to the
Assembly opinion the right of a member OF
the legislature TO draw compensation from the
State in addition his salary for legal services
performed under designation by heads Of State de-
partments. In his opinion he says:
As general principle of law. officer who ac-
pensation is attached must perform the duties Of
does not follow that a public officer is bound to
perform all manner of pu9lic services without com,
thereto Nor is he in consequence of holding an
Office rendered legally incompetent to DISCHARGE
therefore. he is employed to render service in
germane or incidental TO his official duties. see
no legal objection 10 his RECEIVING compensate"
1t may be stated as a general proposition that
where an officer holds two Offices or places tine the
which may both be held by one person at the same
tached to each: and officer may he employed TO
discharge duties which are clearly extra-oinclaii
which might be performed by one person as well
another. and he will he entitled to additional
Unquestionahly. under the constitution. no mem mem
lie Once therein described and receive any fees
compensa ton for services rendered IN SHch otnt
ment is prohibited. 4 civil appointment means an
appointment public office .
I also think that the question Of public policy IN
this connection is largely determined by the sou-
tion Of the question whether the two offices are
compatible. At common law the rule
is well settled that when the occupant of one
office accepts another incompatible with the first he
thereby vacates absolutely the first office. even
though il be a superior and his title thereto
is ipso facto terminated, without any further act
on his part and without any judicial or other pro
ceedings. This rule subject To an exception exist
ing in where party cannot diNest himself OF
office by his act without the concurrence or
another authority his resignation or his motion
In such instances the acceptance of an incompat-
ble office does not operate an absolute avoidance
of a former office. unless by the consent OF the
other authority. Otherwise the officer may choose
which he will retain. but his choice is deemed TO
be made when he accepts the other office The
incompatibility must be something more than mere
physical impossibility of performance of the duties
OF the offices by person. and may he said
arise. before stated where the nature and
duties of the two offices such as to render II
improper from consideratio of public policy for
one person retain both. when they are sub
ordinate and interfering with each other II induces
a presumption that they cannot be executed with
mpartiality and honesty.
1t is therefore my opinion that. unless some ques-
tion Of public policy (which would have to be de-
termined by the circumstances attending each par
ticular easel would 10 intervene TO interrupt
defeat this construction. member of the legis-
lature may lawfully be employed in his private
character as a lawyer physician. clergyman or in
any other profession business where the services
required of him outside of those incidental to
his duties such member.