Year: 1859

The singular position or 2flons takeh bv Mr. Hindman on the qhe4 bn of "per diem," are worthy of notice. These seem to have varied during his tour and were taken to suit different localities. In some places he said that while he told hls friends that it was legal, he advised them not to take it. In other places he denied justify ing the act, contending 1t was wrong, ana that our Senators had been guilty ot the same thing. which charge has been dls- proved. In making up sort ot defense at some points, he said that ii the clam for pay during the twenty four days when the General Assembly was not in session had not been legal, the Auditor would not have drawn a warrant for the nlnety-slX dollars. At the time of saying thls, Mir. Hindman was careful to say that he regard- ed MT. Miller, the Auditor, as worthy man and good officer, but either so charged or attempted to create the impression that i a wrong was done, the Auditor was to blame for permitting the members to draw this money. In support of this posifoM, he read some sections of law from Nhe' Digest of the Statutes. The truth Is that the Auditor had no discretion or contlfl in this matter, as we shall presently show. If Mir. Hindman knew this, he was guilty of misrepresentation and deliberate at tempt to deceive the people. If he was lg- norant of the law, and believed what he said to be true, then he made a charge without examination, and IS not so well posted as he professes to be. We incline to the former opinion, because it was well known at the time the first certificate signed by the new Speaker was presented to the Auditor, he asked for time to consult the Solicitor General, and did not draw warrant until after such consultations.

 The Auditor cannot refuse to draw his warrant in certain cases. The Governor may certify.to accounts to be paid out of his contingent fund, the Judges of the Supreme Court to services by their clerk, the financial receiver and receiver in chan cery of the banks, to expenses of the same, and the Auditor cannot go behind their certificates. The statute reads thus:

 "The compensation which shall be due to the members and officers of the General Assembly shall be certified by their Presi- | dent and Speaker respectively, to the Auditor of public accounts, who shall issue his warrant therefor on the State Treasurer, and which shall be paid out of any moneys in the treasury not otherwise appropria- ted'

 It will be seen that this gives the Audit or no discretionary power. In this case the presiding officer of each House audits the account, certiics the same, and leaves the Auditor only ministerial duty to perform. If the Speaker had certified that each member was entitled to a thousand dollars, the Auditor could not have refused to draw warrant for the amount. This principle is well settled, and our Supreme Court in the case of Danley, Auditor, etc., vs Whiteley, i'll an elaborate opinion cnunciates and explains the position We quote from that decision, to be found in the l4th vol. of Arkansas Reports, and which was rendered at the January term, 1854. Mr. Chief Jusice Watkins, in delivering the opinion of the court, among other things, said:

 "lt cannot be doubted that the legislature has the power by law, to refer to officers or agents other than the Auditor, the settle ment of accounts against the State and by whose decision. within the scope of their authority, the State may agree to become bound. It may be well to adhere to the policy of making the Auditor the general accountant of the State, and preserving un der the supervision of one office, the details of whose duties become systemized, the evidences and documents relating to the public finances But there may be excep- (, bn Assembly deems it eXpedient to place at the disposal of the Governor, as the head of the executive department, contingent or secret service fund, the nature of trust reposed in him implies that the Auditor should issue his warrants, upon the requisi- tion of the Governor, without question or hindrance. The same principle might be applicable to the mode of auditing the ordinary contingent expenses of the ju- dietary; and wiM eo9uay reason a acoald De nude Me imperotiye duty cf Me Aadjtor to issue his acarrants for Me pay ond mileage of members, and contingent expenses of he tro 5ranches of Me General AssemJly, upon Me cenifcate of such ct heir o9fcers as m{gM 6e appointed .tor thot purpose."

 The Judge goes on to give the reason for this, and further on uses this language:

 Because upon principle, and unleas this be so, the Auditor could withhold the regular salary of any public officer; he could defeat the execution of the laws, by refusing to obey the requisiton of the Governor upon the contingent fund; and by disregarding the certificate of the proper officer of either House. he might force members of the General Assembly to bring suit against the State for their per dem and mileage"

 The Speaker of the House was the au- dtor in this case, and the attempt to fix the responsibility of the act on Mir. Miller, is a failure We do not know that MT. Duval seeks to evade the responsibility by his acts, but this quasi defense of him by his friend and the attempt to relieve him by throwing the burden on another, is a half admission that the acts are wrong. Mr. Hindman, in ascertaning that the Auditor was to blame in issuing the warrants, if it was wrong to pay the money. has shown that he was wofully ignorant of the law, or studiously attempted to deceive. The Speaker of the House acted in judicial and financial capacity. Had he refused to sign the certificates, no member could have drawn the ninety-six dollars. Having signed the certificates, the Auditor had no right to refuse to draw warrants on them. The Speaker is placed this case at the door of the treasury. If he chose to open it and let the members help them selves, he alone was responsible.

 

 A NEW CoUNTERFE1T.-A new counter felt ten dollar bill on the Canal Bank of