The Montgomery advertiser., 1904-08-20
THE SALARY QUESTION
ATTORNEY-GENERA HELD GOV.
 ERNOR JELks SHOULD BE PAID.
The Question Which is Agitating Some
 of the State Papers Was Settled on May 14.

Mexico. and Lieutenant and Acting l Governor Cunningham. in Montgomery. each dra wa salary as Governor or Alabama. is a question that has sud denly attracted the attention of some Alabama newspapers
 | As early as May 14, Attorney General | Massey Wilson. in a written opinion. l settled the question so far as the Au- | ditor and the State Treasurer were con | cerned. by ruling that the Constitution l specifically provided that the Governor. | during his incapacity from illness, | should be regularly paid his salary. and that under the Constitution the Lieutenant-Governor. while discharging the duties of Governor, should receive | the same salary.
 The opinion was written In response | to a request from Auditor Sowell. With the filing of the opinion by the Attor- ney General the matter was regarded | as closed The opinion was quite clear and definite. The Attorney General was positive in his interpretation of the constitutional provision.
 The Constitutional Convention met shortly after the beginning of the brief administration of Governor Will liam J. Sanford. Governor Sanford. 1t will be recalled, was i'll for month and the duties of the Governors off1cc were discharged by William D. Jelks. then President of the Senate. The memory of this was fresh in the minds of the members of the Constitutional Convention, and 1t was discussed In the debates on the floor of the conven- tion. In the minds of those who heard the debates there could exist no doubts that the provision of the Constitution which was inserted was conceived 10 cover just such a case as arose through the illness of Governor Jelks. The opinion of the Attorney General in full Is as follows:
 Hon. Thomas L.. Sowell, State Auditor, Capitol: Dear Sir-Pursuant to your request. have investigated the law relating to the right of the Governor of Alabama to draw his salary from the treasury while sick and unable to discharge the duties of his office, because of such sickness, and while the Lieutenant power and authority of the office, and Respectfully submie my conclusions up- on the subject.
 In case of the Governors disability to discharge the duties of his office, the power and authority of the office devclve upon the Lieutenant Governor. until the Governor Is relieved from such disability. Constitution. Sec. l127.)
 If such disability on the part of the Governor is caused by sickness. it Is the duty of the Lieutenant Governor to administer the government until the office, and file with the Secretary of State a declaration that he resumes the duties of his office. (Acts, 1900-'01, p. 245, Section 2.) Even though the | ity as to cause the power and authority nf the office to devolve upon the Lieu tenant Governor. yet the Governor still holds the title and right to his office; ho is nevertheless Governor. and the Lieutenant Governor is still but Lieu tenant Governor, although for the time heing, with increased duties and pow. CTS.
 that where the law provides compensa- tfon for public officer, the person holding the title to the office Is enti- tied to such compensation. The salary tMecham on Public officers, Secs. S5- 5-6; Throop's Public Officers. Sec AS; 23 A. X E. Enc. of Law, 2 Ed. p. 3s6.I The Constitution provides that the be fixed by law, which shali not be fn- creased nor diminished during the term for which he shall have bean elected. tConstitution. Sec. 118.) The nor at Ave thousand dollars per an- mum. payable monthly. Code. Sec. 1854. Acts, 1903. p. 32.) It follows as an irresistible conclusion that the Gov
 
 to his office, although too i'll to dis charge his duties, and Is entitled to his salary notwithstanding such disa- bility. This view is taken by several of the courts of the country in well considered cases. (Bryan vs. Cotteli 15 Iowa, a35. 551: Sleigh vs. U. S.. 9 Ct. of Cl 36s, 375; O'Leary vs. Board of Education. 93 New York.) In tn. case of White vs. Denson. 122 Alabama, 617, the validity of an act of the Leg islature requiring a deduction to be made from the salaries of Circuit Judges who should fail to hold their courts, even though such failure might be the result of sickness or other prov. idential cause, was assailed
 The Court in that case held the stat stitutional clause to the effect that th. Circuit Judges should receive compen- sation to be fixed by law. which should not be decreased during their term The point decided in that case, is anal agous to the question under consider ation, and the decision Is authority for the view l have taken.
 The compensation of the Lieutenant Governor. while serving as Governor Is the same as that allowed the Cover
 nor. Constitution. Sec. 11S.) This provision of the constitution Is self-ex- ecuting and needs no statutory enact Itself, an appropriation by law and
 may be drawn by the Lieutenant Gov ernor when he is entitled to 1t with out legislative appropriation. (Consti- tuition. Sec. P; Reynolds vs. Taylor. 43 Alabama, 420.)
 1 Very respectfully. | Massey Wilson,