The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1904-03-06
SiMONS GIVES
AN OPINION
Amounts Claimed Exceed the
Appropriations.
WHAT Is THE REMEDY?'
Has imposed a Duty and Then
a Penalty.

eraI Simons today submitted the follow
ing at request of Governor Ferguson.
Guthrie. o. T, March 5.
Hon. T. B. Ferguson, Governor of Ok
lahoma,
Dear Sir:-I have had under considera-
ton your letter of February 18th. in
which you request my opinion on the
application of the closing portion of sec
ton l. chapter 2, in the appropriation
bill passed by the legislature of 1903, re-
lative to creating a deficiency and con-
corning which you state as follows:
The last legislature made an appro-
priation Tor keeping the insane Of the
territory at Norman, o. t.; also an ap-
preparation for maintaining the territorial
convicts at Lansing, Kan. In each in
stance the amount claimed for the last
quarter of the year, 1868, exceeded the
appropriation for that year. The audi
tors warrant has been issued to cover
the amount of appropriation but not to
cover the deficit. In either case would
this Office be warranted in asking the
legislature to make deficiency appro-
priation for the balance claimed by the
Sanitarium company and the balance
claimed by the authorities of the Kansas
state penitentiary? The deficiency was
created practically without the knowledge
of the territory. We had no means OF
knowing how many prisoners would be
in the Kansas penitentiary for the last
quarter, nor had We any means of know
ing how many inmates would be in the
asylum. The territory contracts with the
asylum at so much per year for each in
mate pro rated according to time said
inmates are in the asylum. The con-
tract with the Kansas penitentiary calls
for so much per day for each prisoner.
AS above stated. the deficiency has been
contracted without the knowledge of the
territory and We are required by law to
take care of the inmates duly sentenced
to the senitarium, as well as to take
care of the convicts sentenced to the peni-
tertiary 1t seems to this Office that the
legislature has imposed a duty on the
territory and then imposed a penalty if
that duty is performed"
1 have carefully examined the section
of law referred to and will say that it
is my opinion that the prohibition created
against the creating of deficit does not
apply, and in its very mature of the ter
ritory or the maintenance of the convicts
of the territory. In each of these cases
the laws of this territory not only au-
thorize but direct the governor of the
territory to make suitable provision for
the care and maintenance of the insane
and convicts of the territory by enter
ing into contracts with responsible per-
son, persons or corporation for such pur-
pose
At the time of making these contracts
it is an impossibility for the executive of
the territory to know how many convicts
or how many insane will have to be taken
care Of in The future. In other words.
men are constantly being convicted or
crime by the courts and sentenced to
serve terms in the penitentiary, and peo-
pie are continually becoming insane and
requiring the care and attention Of thu
territory. both of which are uncertain
contingencies producing. respectively. in
mates for the penitentiary and the insane
asylum. the number of which it would be
impossible to forecast, and it is made
obligatory upon the territory. by law, to
provide place of incarceration for the
convicts and 2sylums for the insane It
certainly seems to me that the prOhibi
ton contained in section l of the appro-
priation act of 1903 has reference to the
creating Of a deficit by any Official or OF
ficials where they have it within their
power to control the expenditures refer
red to- In other words. whede they have
some discretion AS To such expenditures
and have it within their power to check
the same when the limit of appropriation
is rea ched and the prohibition undoubted-
ly Is aimed at reckless expenditure or
the territorial funds and for the purpose
of keeping the same within certain pre-
scribed bounds. Further than this. the
legislature having made it the duty Of the
territorial officers 10 provide for the sup
port and maintenance Of the convicts and
insane o. tn territory. and under the gen.
eral policy OF the laf. I seriously doubt
whether they could impose any such pen
atty as is prescribed in the act referred
10. In support of this theory I will say
that the legislators have themselves ex-
presSly recognized the authority Of the
territorial officials TO create a deficit for
the purposes mentioned. The appropria
ton acl Of 1901. in section I thereof. con
taius the same identical prohibition
against the creation Of a deficit as is
contained in section Of the 1868 law. and
yet. Notwithstanding that fact. a deficit
was created during the lear 5000 and
the legislature % 1893 recognized the right
TO create the deficit and its validity By
reason Of the fact that in the same act.
in section Is Of the appropriation Of 1915.
Il made an appropriation Of Si4.3S2 and
some cents to cover the deficiency aris-
ing from the care OF couvicts for the
wear IsF-o2 IS per vouchers on file in the
Office Of the auditor. and If section % Of
the same act made a deficiency ap9roDri-
alton for expenses connected with the
care Of the insane.
Under my view OF the law. I an clearly
OF the opinion mat you have the right 10
ask the legislature 10 make a deficiency (
appropriation for the balance claimed BY
the Ssnitarium company and BY the su-
thorities OF the Kansas psni1entiary for
the expenses. respectively, Of caring for
the insane and conyicts q the territory.
7 have the honor 10 remain. respectfully
?. {. SIMONS. Attorney General
IN CLEVELAND COUNTY.