Daily capital journal. (Salem, Oregon) 1903-1919, 1914-12-29
THE SUPREME COURT
SUSTAINS governor
Holds That There Was No
Revolving Fund But Money
Was Lawfully Used

"There is no authority Of law ere
ating the so.called "revolving fund
Of the state penitentiary and it did not
legally exist; the moneys paid into the
state treasury from the proceeds of
materials manufactured at the peniten.
tiary became legally part of the gen
eral fund in the state treasury, and,
inasmuch as it was admitted that the
expenditures Of the socalled revolving
fund were made for the purposes of
the penitentiary's legitimate indebted
ness, and so long as the amount drawn
did not exceed $4,000, the amount
appropriated for the maintenance of
the penitentiary by the Legislature of
1913, the $l6,l9l.33 expended by the
governor for the betterment of the in
stitution could be and was Legitimate.
ly used to answer the demands caused
by expenditures at the penitcntiary "
This, insubstance, is the conclusion
of the majority of the members of. the
supreme court in an opinion affirming
the judgment of Judge Kelly, of the
circuit court for Marion county, in the
case Of the state VS.. Governor West,
state Treasurer Kay and Secretary of
State Olcott as the state board, in
which Governor West IS action in ex.
pending $lG,l9l.33 Of the so.caled Gre.
volying" fund Of the pententiary for
improvements and bettermeuts Of the
prison during the wears l9l1.1912. nrd
in which suit was brought against the
state board for damages in the amount
expended. The affirmative opinion
was written by Justice Mcbride, in
which Justices Bean, Ramsey and Nc
Nary concurred, while dissenting
opinion, written by Justice Burnett,
was also handed down expressing the
views Of Justices Burnett, Moore and
Eakin.
"The appropriation of public funds
for particular purposes is purely a
function Of the legislative department
of the state government, - says Jus.
tice Burnett in the dissenting opinion.
"When the defendants assumed to pay
out the state funds without legal au.
thority they did so without the author.
ity Of the legislature and can claim no.
thing on account thereof. AS to the
defense set up by the defendants that
II was necessary to eXpcnd these funds,
no statute has been found declaring
such necessity, and their action in do.
ing so was manifestly based only upon
the Judgment Of the defendants and in
this they usurped the prerogatiyr OF
the legislative assembly.
alt cannot be said that the defend.
ants may perform acts contrary to and
in excess of their official authority and
M the same time ratify them on behalf
Of the state II cannot be admitted
that official mOlfeosouce is sclfsus
taning. Ratification is an act that
can only be performed by princi.
pal Even if the same could be ap.
piled In this case It IL function not
attributable TO nor TO be exercised by
the agent whose acts are in question
"ln short, the pleadings show that
the defendants, without authority Of
law have extended from the state
treasury some amount Of money, or in
other words have converted that
amount OF money to their own use
within the meaning of the state w.,
Ross, supra The measure of damages
In case Of conversion is the value Of
the property converted and the only
legal way in which the matter can be
adjusted is TO require the defendants
to replace the money which they un.
lawfully disburscd, "