The Daily Alaska empire., 1929-05-18

Rustgard Riddles Protests Of Wickersham on Payment
 Of Salaries by Territory

cd yesterday to Auditor Cash Cole Attorney General John Rustgard upheld the legality and validity oi salaries paid from Territorial funds to the Highway Engineer, and to the Secretary to the Governor ano clerks in the Governors office. IT. his opinion the Auditor and Treas urer have nothing to fear from prosecutions for misfeasance and malfeasance in office-although he didn't use those terms-in approv- ing for payment and paying vouch- CTS for such services.
 The opinion is an answer to a letter addressed to Auditor Cols and Treasurer Walstein G. Smith recently by Judge James Wicker sham in which it was charged that appropriations for the clerical staff in the Governors office were H. legal, and that as there was no specific appropriation for that pur- pose no salary could be paid to the Highway Engineer.
 Without Foundation
 Attorney General Rustgard's opin- ion takes up the Wlckersham pro- tests in the order they were made deals with each conclusively in seriatin, and finds them to be wholely without foundation. Judge Wickersham asserts" said the At torney Generals opinion, that oria, three items (citing therr- C.3- ,a..e..llA Lated for the Govers tho co, are illegal, but he does not istate wherein the illegality exists.
 "The Appropriation Act of 1929 so far as these items are concern ed, is identical with the Act oi 1927. Immediately after that act was passed and approved Judge Wickersham instituted proceedings in the district court against the Treasurer of the Territory to en- join him from paying the appro- priation made for the Governors s office, the Secretary's office and various other appropriations, in- ciuding those here in question. AS to some of the items the plaintiff was sustained by the district court, but the items here in question were held by the court to be legal and valid. The suit was then dis missed and a new proceeding start ed solely for the purpose of en- joining the payment of the appro- priations for the Governors office, ? which suit was later dismissed after the appropriations involved had been disbursed.
 Discusses Objections
 The Attorney General then en- tered into a discussion of the Wickersham objections as set forth in the 1927 cases. These were two, first, that the Governor is a fed eral official discharging federal functions and the legislature can not lawfully appropriate funds to operate a federal office, and sec- ond, that there is no law providing for laries for the Governors clerks and appropriation for these is therefore improperly included in the General Appropriation Act.
 Continuing, he said: Tt is to be assumed that these were the ob- jections in Judge Wickersham' s mind when he made his protest to you that the appropriations here in question were illegal and should not be paid' He points out that "the legal problems involved re- ceive a most careful study by His Honor Judge T. M. Reed in the first of the Wickersham cases, and this learned jurist, after discussing at length and eruditely each propo- sition advanced, reached the con- clusion that the appropriation here in question were legitimate though others were not found to be so.'
 He added although he had not been able to follow Judge Reed in all his reasoning, 1t would not seem justifiable by this office in a case of this character at this time to hold that he is so clearly in error that this office cannot accept the decisions as authoritative.
 Legislature Accepted It
 "The questions involved have been argued pro and con during a per- iod of several years and has agi- tated the public during several pre- election campaigns. The recent evidently accepted Judge Reeds ruling as legally correct, and unless it appeared clearly that the Legislative branch of our Govern ment were in error in doing so it would seem presumptuous for this office to say they were so obvious ly mistaken that their decision should be disregarded."