The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1905-02-11
BAILEY LOSES IT.
Supreme Court Decides the
"GrOcery BilI'' Case.
Decides That MaintenanceDidn't
Mean Food.
COLEMAN OVERRULED.
Position of Attorney General Is
Overthrow.
Nothing Said About Returning
the Money.
Action of the Supreme Court Is
Unanimous.
OLEMAN OVERRULED.

The supreme court today handed
down a decision denying the appH-
cation of Ex-Governor Bailey for a
writ of mandamus to compel T. T.
Kelly, treasurer of the state Of Kansas,
to countersign a warrant for $162.S9,
issued by the auditor of the state.
The decision of the supreme court
was that it was unconstitutional to
pay the bill for food used at the ex-
treasurer in holding up the payment
of the last voucher for such supplies
presented by Governor Bailey.
The decision of the supreme court
overrules the decision of Attorney
General Coleman, who held that Gov
ernor Baileys use of the mainten-
ance fund was legal.
~The decision does not stipulate that
1t is expected that any part of the
money used by Governor Bailey for
that purpose be returned to the state.
The precedent established by the non
return of the salaries and moneys ex-
pended in the support of the court
of visitation, which was dissolved on
account of its unconstitutionaIity will
prevails
The decision was written by Judge
Mason, the other judges concurring.
The decision says:
"The act of 1903 appropriating
money for maintaining the executive
residence does not authorize the en-
appropriated for the purchase of pro-
visions to be used there. If given such
construction the act would to that ex-
tent be in cOntravention of a consti-
tutional prohibition against increasing
the compensation of the governor
during his term Of Office and there
fore void.
''The refusal of the treasurer to
countersign the warrant is based upon
the contention that the law does not
authorize the payment by the state of
any amount whatever for food used at
the executive residence and the sound
ness of this proposition is the sole
question presented for determination.
THE original act appropriated to
the executive council $33 ,000 for the
purchase, furnishing and equipment
maintaining and repairing it for two
years. That maintaining as there
used had no reference to supplying
food is manifest There is nothing in
the context to suggest it. The enumer-
alton of things to be provided by the
state including furniture, carpets,
utensils, light and heat, warrants the
inference that if food had been in
contemplation it would have been
specifically mentioned
THE same word maintaining used in
the act of 1908 in the same connection
should not be given a different mean
ing unless in virtue of some extraenous
meaning.
THE increase in the governors sal
ary may perhaps be attributed to a be-
lief that upon an official income of 49,
600 a year support an establishment as
his official homo in a manner thought
to be suited to the reasonable require
mentS of his position, and it may pos
sibly be inferred that the legislature,
realizing that no change in his COM
pensation at once, sought as a tempor-
airy expedient to meet the immediate
demands of the situation by placing in
his hands a sum of $1,000 a year with
fT1ta 6eCi ion n
expended in his discretion for expenses
incident to the fulillment of his social
obligation and to the exercise of the
civilitieS expected from him at the head
of the state government. These consid-
eratiOns certainly have a tendency in
the direction suggested Yet they are
not so fOrcible as plainly to compel the
conclusion indicated and to place the
question of the meaning of the act be-
yond all controversy"
The court then cites the constitutional
provision prohibiting the increase or de-
crease of the governors salary during
his term of office.
The decision says: 1T requires no
argument to demonstrate that sub
stantial increase in the compensation of
an official is accomplished by placing
at his disposal an additional sum for
the purchase of food to be used at his
residence by himself, his family and
his guests. even although such sum
may not exceed the amount by which
his household expenses are increased by
the practice of the social amenities ap-
propriate to his position, where there is
no separation of the expenditures to be
made in the ordinary course of his do
mestic life and those incurred in the
exercise of what might be classed as
public and official hospitality. If a sum
were set apart to be used for specific |
entertainments authorized to be given |
at the public expense a different Ques-
ton would be presented But that is
not the case here.
1T has been held that where the |
constitution forbids an increase in the |
compensation of an official during the |
term for which he has been elected. |
an allowance may be made for the in |
cidental expenses of his Office and that
additional payment may even be made |
to him for the performance of new
duties imposed which are not germane !
to his Office. The argument made that |
the allowance of SuStainence fund !
may be justified as a mere provision |
for the expense of performing a newly |
imposed duty, even if otherwise ten |
able fails at two points In the first |
place there is no legal duty resting |
upon the governor to do any amount |
of entertaining at the executive resi- |
dence or even occupy it a all.
In the second place, whatever these |
obligations may be. they existed in 1901 /
while the salary of the governor was 1
fixed at 5000 without additional allow
ance for any expenses incidental to their I
fulhIlment. Consequently for the state /
in 1903 to have assumed liability for the |
payment of such expenses would have /
been to increase the Sompensa ton OF the /
governor durirg the term for which he |
was elected It cannot be supposed that /
This was the purpose of the legislature /
since it would have been in violation of |