[L.] Balances on General Ledger, Nov. 30th, 1845. Shows the balanee in State Treasury, Nov. 30, '45, $18,892 81 APPENDIX. A case having arisen since the adjournment of the last session of the legislature, in which it was considered the duty of this department to withhold a warrant for an appropriation contained in one of the acts of that session, I have deemed it proper to lay the matter before the legislature at its approaching session, in connection with my annual report. In April last, whilst I held the office of state treasurer, there was presented to me for payment a certificate of the Speaker of the House, in favor of W. Norman McLeod, for one hundred and five dollars, accompanied by a certificate from the latter, as "the member from Michilimackinac," that he was entitled to pay for SIXTY DAYS EXTRA time before the last session of the legislature. Knowing that he had already overdrawn to the amount of five dollars, all that he was entitled to under the act providing for the pay of officers and members, or at the rate of three dollars per day for the whole time that the legislature was in session, including the usual mileage allowed to the members from that county, and that being all which I considered that the above mentioned act authorized the state treasurer to pay on the certificate of the Speaker of the House, I of course declined payment. At the time when the above certificate was presented, I was also informed that other parties held like certificates, on which they had advanced seventy dollars, making altogether, with the five dollars overpaid him, one hundred and eighty dollars, or three dollars a day for the SIXTY DAYS EXTRA time certified to by the member from MackiAs evidence that the member from that county was entitled to sixty days extra pay, I was referred to the third section of the general appropriation bill of last winter, Act No. 111. But having strong doubts of the constitutionality of any such appropriation, and at any rate seeing nothing in the terms of the appropriation, requiring the certificate of the Speaker of the House, or authorizing the state treasurer to pay it, either with or without such certificate, without first obtaining the warrant of the auditor general, I referred the parties and the whole matter to that officer. In the absence of the then auditor, (Mr. Hammond,) his deputy, Mr. Whipple, upon my advice, submitted the matter to the Attorney General, in a note, a copy of naw. which is hereunto annexed, marked A, as also of the reply of that officer, marked B. In conclusion I would merely remark, that though the matter has not been presented for any decision at this office, since I entered upon the discharge of its duties, yet that my doubts of the constitutionality of the appropriation having been much strengthened by the opi. nion of the Attorney General, and the opinion of that officer being, that it was clearly the duty of this department in such a case to withhold a warrant until its constitutionality could be tested before the proper judicial tribunal, I should have felt bound, if the matter had been presented, to have refused a warrant. All of which is respectfully submitted. JOHN J. ADAM, Auditor General. JA.] AUDITOR GENERAL'S, OFFICE, HON. H. N. WALKER, Attorney General: SIR-In the general appropriation bill, approved March 24th, 1845, is contained the following provision: "There shall be allowed to the member from Michilimackinac, for extra time before the session of the Legislature, at the rate of three dollars per day, to be paid on the certificate of the member." per di The constitution of the State, Art. 4, § 18, provides that the com pensation of members of the Legislature, shall never exceed three dollars a day; and as this was evidently intended to limit the em compensation of members to a fixed rate, not exceeding three dollars a day, for and during some definite period; the question arises what was the period, or length of time? The uniform practice in other States, under like constitutional provisions, up to and at the time of the formation of our State constitution, would seem to have indicated so clearly, that there could be no misconstruction or doubt on this point, that the convention deemed it unnecessary to add, "during the actual session of the Legislature," as was undoubtedly their intention by the phraseology used. The restriction in the constitution, would be a nullity, unless so construed. If not limited to the actual session of the Legislature, the only other supposable limit would appear to be during the whole time those elected were members, or liable to serve as such; that would be, except in case of death, resignation, &c., three hundred and sixty-five days, more or less, in each case. But the provision in the appropriation bill, purports to appropriate money as compensation to a member of the Legislature of 1845, before that Legislature met, or could constitutionally meet, and whilst a prior Legislature might have been in session, and drawing pay, and certainly before any member of the Legislature of 1845 did serve, or could have served as such. The appropriation, too, does not purport to be for mileage or traveling expenses, which the same uniform practice which would settle the construction of the above clause of the constitution, would authorize the allowance of, but on its face purports to be a per diem compensation at the maximum rate authorized by the constitution. A certificate is presented in pursuance of the above recited provis ion of the appropriation bill signed by the member from Michilimackinac, stating that he was necessarily detained sixty days previous to the session of the Legislature, on which a warrant on the State Treasurer is asked. I would therefore respectfully submit to you as the legal adviser of all the other branches and officer of the state government, whether in case of doubt of the constitutionality of the above provision of law, a wariant should be drawn without testing the ques tion before the Supreme Court, by the parties interested applying for a mandamus, or otherwise. And before deciding whether to refuse a warrant until the question is so tested, I would also solicit your views as Attorney General, as to the constitutionality of such an appropriation as is contained in the extract from the act of March 24th, 1845. Respectfully, &c. H. L. WHIPPLE, Dep'y. Auditor General. |