Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1902-03-13
A PECULIAR
LEGAL PROBLEM
Membership Of the Louisiana Purchase Expo
sition Commission Of New Mexico
Involved.
AN EXHAUSTIVE OPINION
Solicitor General Bartlett Declares That In His Opinion
Members Of the 34th Legislative Assembly Are
Eligible TO Membership on the Above
Commission.

eligibility of several of the members
of the Louisiana Purchase Exposition
Commission from New Mexico, Solici-
tor General e. l.. Bartlett has given
the following opinion:
Santa Fe, N. NJ. March II, 1902.
Hon. Miguel A. Otero.
Governor of New Mexico
Dear Sir: In reply to your question
as to whether members of the Territor-
ial Board of Louisiana Purchase Expo
sition Managers of New Mexico, au-
thorized to be appointed by Chapter
100 of the Session Laws of 1901, are to
be considered as holding an office crea-
ted by the legislature so as to come
within the prohibition contained in
Section 1854, Revised Statutes of the
United States, has had my careful at
tention, and in reply would say that
the territorial act in question provides
for the appointment by the governor
within sixty days after the 21st of
March, 1901, of seven men to constitute
a commission under the name stated in
said act Their duties are prescribed
fully in the act to carry out the pro-
visions for which $4,000 was appropria-
ted and a tax ordered levied to raise
the same. The members of the board
are entitled to the sum of $4 per day for
subsistence for each day necessarily
absent from their homes on the busi-
ness of said board, and their actual ex-
penses for transportation. 1t Is requir-
ed to make report to the governor from
time to time, and to make a detailed
report of all It's doings by the 18th day
of December, 1902. Its existence ceases
on the 1st day of January, 1904, and at
that time shall make full detailed and
itemized final report of all its doings
and of all moneys expended under said
act
Section 1854, Revised Statutes of the
United States, provides as follows: mo
member of the legislative assembly OF
any territory now organized shall hold
or be appointed to any office which
has been created or the salary or emol-
uments of which have been increased
while he was member during the
tenn for which he was elected and for
one year after the expiration OF surA
term" The members of the last legls-
latiye assembly were elected to the
saith legislative assembly which exists
until its successor as a legislative as
sembly is elected and organized. That
is to say, If special session OF the leg
islature of New Mexico were necessary
and permitted to be called by the pres
ident, the members of the S4th legisla-
tive assembly would constitute that
body Therefore the lapse OF year
since the adjournment Of the last leg
islature would not remove the prohibit
tion contained in the act of congress II
it exists The term public office I'M
plies a delegation Of a portion CT the
sovereign power to and possession OF
it by the person filling the office, and
the person whose duty 1t is to exercise
the power is public officer. The term
embraces the idea Of tenure, duration
emolument and duties, and has respect
to a permanent public trust to be exer'
cised in behalf Of government, and MOI
a merely occasional or incidental EN-
ployment.
Officers of the territory are required
to take an oath and generally to give
bond for the faithful performance oi
their duties. But the act creating the
board in question makes no such pro-
vision. The members receive from the
territory no compensation, except they
are reimbursed their actual expendi'
lures for travel and subsistence.
1t was held in re Corliss, II Rhode
Island, 63S, that the Office of commits
sioner of U. S. centennial commission
was an Office of trust under Article 2
Section 1 of the Constitution of thu
United States, providing that no sen
ator or representative or person hold
ing an office Of trust or profit under tn
United States shall be appointed al
eiector." The opinion does not stat
whether these commissioners took al
oath of office or what compensation
was provided, but the opinion doe
state that 1t was not an Office of profit
but was an office Of trust.
These words Of Limitation profit O
trust" do not occur in Section 1854. nov
under consideration, but simply st
any Office" In the event that ther
should be a special session Of the legis
lature called of which members o
this commission were members the
| might as legislators have to pass upol
their own acts as commissioners. bu
| in such an event they would doubles
decline to vote or act. 1t has been tn
custom in this territory for many year
| to appoint upon similar commission
and boards members of the legislator
which authorized the same, and ther
seems to be good reason for this course
as the gentlemen interested in passin
the bill would have more interest
carrying it into effect.
This statute of the United States ha
been in force for more than fifty year
and during that time many simila
boards and commissions have bee
created by the legislature. In all
which members Of that body have bee
appointed, and this is the first time
my knowledge that the question ha
ever arisen, and while there are al
thorities sustaining both views, m
own opinion is that upon reason, tf