No. 137. IN CONVENTION November 20, 1867. COMMUNICATION FROM THE COMPTROLLER, GIVING CORRESPONDENCE RELATIVE TO THE POWER OF THE COMPTROLLER TO CONTINUE PAYMENT OF THE EXPENSES OF THE CONVENTION. Hon. WILLIAM A. WHEELER, STATE OF NEW YORK. COMPTROLLER'S OFFICE, President of the Constitutional Convention: DEAR SIR-I inclose herewith, for the information of the Convention, copies of a correspondence with the Attorney-General ralative to the power of the Comptroller to continue the payment of the expenses of the Convention after the expiration of the time fixed in the act of 1867 for a submission of the Constitution to the popular vote. You will notice that the Attorney-General is of the opinion that my authority to pay under the act referred to has ceased, and that it can only be revived by the Legislature. In consequence of this decision of the law officer of the State, I do not feel willing to take the responsibility of continuing to draw warrants on the treasury for the payment of the expenses of the Convention, without further legislative action. Desirous, however [CON. No. 137.] 1 of doing everything in my power to facilitate the completion of the important work on which the Convention is engaged, I have ascertained, as will be seen from the enclosed correspondence with E. P. Prentice, Esq., President, &c., that the Commercial Bank of this city, if the Convention thinks it proper to accept the offer by resolution or otherwise, will on its own responsibility pay the usual certificates of service issued to members and officers, and signed by the President, relying on the Legislature to provide for the repayment of the amount thus advanced, with interest. Hoping that this disposition of the subject will be approved of by the Convention, I am, very respectfully, yours, THOS. HILLHOUSE, STATE OF NEW YORK. COMPTROLLER'S OFFICE, Hon. JOHN H. MARTINDALE, Attorney-General: DEAR SIR-Permit me to call your attention to the act, chapter 194, passed March 29, 1867, entitled, "An act to provide for a Convention to revise and amend the Constitution," and more particu larly to the 5th section, which requires a submission of the new Constitution to the popular vote, "at the next general election to be held on the Tuesday next after the first Monday of November next," and to ask your opinion on the following points: 1st. Can the Convention continue its sessions after the time fixed in the legislative act referred to, for a submission of its work to the people has expired, or has that body a discretionary power as to the time of submission, beyond the control of the Legislature? 2d. On either of the suppositions of the preceding inquiry, is not the legislative act binding on the Comptroller in all its provisions, so far as they impose duties on that officer, and if so can he properly pay the members and officers of the Convention for attendance after the time indicated in the act for a submission to the people? (Signed,) Very respectfully yours, THOS. HILLHOUSE, Comptroller. (Copy.) STATE OF NEW YORK, OFFICE OF THE ATTORNEY-GENERAL, ALBANY, October 10th, 1867. ( Hon. THOMAS HILLHOUSE, Comptroller, &c.: I have the honor to acknowledge the receipt of your communication of the 7th inst., propounding to me certain inquiries relating to the act, Chap. 194 of the laws of last winter, entitled "An act to provide for a Convention to revise and amend the Constitution." To your inquiry whether the Convention can continue its sessions after the fifth day of November next, being "the time fixed in the legislative act for the submission of its work to the people," I respond, that its voluntary sessions after that date are not prohibited by any law. Its work after the time referred to may be recognized at the next session of the Legislature, and submitted to the people for ratification or rejection. In my opinion it is unimportant in this regard whether the Convention derives its vitality primarily from the present Constitution or from the legislative act providing for the election. and assemblage of its members. Whatever may be the primary source of the authority of the Convention, if the Legislature shall submit the result of its deliberations to a general election of the people, and they shall approve, the amendments or Constitution so proposed or adopted will be established in the State. It is unnecessary to consider the effect of such a submission without a legislative act. But your authority to pay the members and officers of the Convention for attendance after the time indicated in the act for a submission to the people," is confined by narrower and more precise limitations. You are not authorized to draw your warrant on the Treasurer for any moneys except in conformity to law. By the provisions of the act in question, the members of the Convention are each entitled "to six dollars per day for every day, from the first day to the last day of the session thereof, and the same mileage as is now paid to the members of the Legislature; but no pay shall be received for any recess longer than three days at one time," and the amendments or constitution which may be proposed, "shall be submitted by the Convention to the people for their adoption or rejection at the next general election, to be held on the Tuesday after the first Monday of November next." How can the Convention comply with this requirement except by the completion of its work before the 5th of November next? for The law in effect tells you, "pay the members six dollars per day every day of the session of the Convention; but the session must be ended before the next general elelection!" Such, in my opinion, was the intention of the Legislature in passing the act, and such was the popular, and I think, the true construction of it. All the right of the members to their compensation is derived from, and must be limited by, the terms of the legislative act under which they are convened. All your authority to pay them is conferred and imposed by the same act. They have discretion to prolong their voluntary session, and to trust to some future legislative enabling act. In doing so they vio late no law. You have no official discretion to transcend the limitations of the present act, nor to draw your warrant in anticipation that it will be extended by the next Legislature. In doing so you would violate. the Constitution which prescribes that "no money shall ever be paid out of the Treasury of this State, or any of its funds, or any of the funds under its management except in pursuance of an appropriation by law." The next Legislature may, in its discretion, pay the members for their attendance after the 5th of November, six dollars, or one dollar per day, or refuse to pay any sum whatever. But the construction which derives the authority and rights of the Convention, including the pay of its clerks and members, from the Constitution, regardless of the limited period prescribed to its |