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respective circuits, or in attendance upon the Supreme Court, in the performance of their official duties.
2d. Ic defining our position in regard to this important question, and in justification of our action in the premises, permit us to remark, that after the most deliberate reflection upon the subject, we regret to say that we feel obliged to arrive at a conclusion at variance with the expressed opinion of a very considerable number of esteemed and distinguished legal gentlemen of the State, given, as we have been inclined to think, more for strong sympathy for those whom it especially concerns, than from a careful examination of the extent of the application of the principle involved therein, or of the spirit and intention of the Constitution itself. We would further say, that when the question was first suggested to us, by the submission of the claims for our action, we felt strongly inclined to favor the allow ance, believing, as we did, with many of our fellow citizens, that the compensation of the Judges, as well as that of the State officers generally, was low; and feeling desirous on that account that the traveling expenses should be allowed and paid, in addition to their salary of $1,500, if it could with propriety under the Constitution, be done. But on a more thorough examination of the whole subject, and after hearing the strongest arguments, official and otherwise, that we thought could well be brought in its favor, we are still constrained to believe that the allowance of such things would be not only unprecedented in the history of our State government, but entirely foreign to what seems to us the most obvious design of the framers of the Constitution, and the people who voted for its adoption. We believe that the remedy for all Constitutional evils should be sought by amendment of the Constitution, and not by violation of any of its provisions; and that the broad future evils entailed upon such a violation, would vastly outweigh any present seeming temporary benefit. Our oaths of office teach us this principle; and we prefer the enjoyment of conscious self-approbation, even to that of friends without it, if so great a personal sacrifice need be made.
Section 9 of article 6 of the Constitution, provides that each of the Judges of the Circuit Courts shall receive a salary payable quarterly.” Article 9 provides that "the Judges of the Circuit Courts shall each receive an annual salary of one thousand five hundred dollars.” “ They shall receive no fees or perquisites whatever, for the performance of any
duties connected with their offices." “ It shall not be competent for the legislature to increase the salaries herein provided." In Section 20 of Schedule, we find the following general provision: “It shall not be
“ lawful hereafter for the legislature to increase or diminish the compensation of any officer during the term for which he is elected or appointed." It is urged that the words “fees” or “ perquisites” do not necessarily or technically mean a remuneration, or “indemnity” for expenses actually incurred; and this may be admitted without at all yielding the Constitutional question; for it is the spirit and meaning of the Constitution, or in other words, the intention of the framers of that instrument, to te arrived at by the legitimate rules of construction, which must decide the question; and this spirit and intention is often found to vary from the common acceptation of the words, and it is sometimes the case, when the ordinary meaning of the words would conflict with the construction given, instead of merely failing to sustain it, which is all that could be said in the present case.
Article 6, section 11, provides that " Circuit Court shall be held at least twice in each year in every county organized for judicial purposes, and four times in each year in counties containing ten thousand inhabi. tants. Judges of the Circuit Court may hold courts for each other, and shall do so when required by law." And section 29 of the schedule, defines the extent of each circuit. Now we cannot for a moment supрове that the framers of the Constitution were blind to the fact that it would be impossible for the Judges to perform the duties thus definitely assigned them, without incurring traveling or other expenses in the service of the State without any remuneration; and yet they made no provision for such expenses, unless we are to suppose that they intended their salaries as the compensation, as well for their necessary traveling expenses as for their services. We think, therefore, we are driven to the conclusion that they did so intend, as regards all such expenses, as must necessarily have been foreseen by them, inasmuch as they made no provision therefor. Upon a careful reading of the debates in the constitutional convention, as well as in the Constitution itself, it seems plain to us that the unanimous policy of that body was, so far as it was in their power, to guard the future against the past evils and abuses, of which the people had so long and so justly complained, viz.: Of heavy extra allowances to State officers, State agents and contractors, and to guard the Treasury from personal importunities, so often being made through the Legislature for further allowances, and for the reason that there was no constitutional barrier to this kind of public peculation. This being the manifest aim of the Constitutional Convention, it would seem an unreasonable reflection upon its integrity and foresight to suppose that so far as they had definitely fixed the amount of public travel of the Circuit Judges, as well as the State officers, they should still allow them to wholly defeat the particular object aimed at, by charging to the State their expenses for the very travel that was plainly enjoined upon them by the Constitution at the time their salaries were fixed. The mere supposition seems obviously absurd. The very nature of the du. ties imposed on the Judges, shows plainly that their expenses in traveling their fixed circuits were foreseen and well understood, and consequently considered and provided for in the amount of their salaries, and which were at that time deemed sufficient. The same principle holds good when applied to the State officers or other State agents, so far as the amount of travel enjoined upon them in the Constitution is concerned, to hold their offices at the Capital or elsewhere. But this argu. ment is without force, when attempted to be applied to unforeseen and consequently unprovided for necessary and indispensable traveling expenses, either for the Judges or State officers. It has been said that a salaried agent could not, when on business for the principal
, be expected to pay his traveling expenses. This may or not be true, as a general rule ; but when an agent is employed to do a business requiring of him a certain amount of travel, and is to be paid by salary, and nothing is said in regard to traveling expenses, we submit whether such traveling expenses would not be regarded as part of his engagement. Is not this a common sense principle, applicable in the every day transactions among men? But there is another reason for supposing the true spirit and intention of the Constitution to be that the necessary traveling expenses of the Judges, while traveling on their prescribed and allotted circuits, were intentionally included, or provided for, in their fixed salaries. At and long previous to the time of revising the Constitution, the Judges had been performing the same duties, incurring in so doing the same necessary traveling expenses, for the same compensation by salary, and so far as we are advised, they never did in any instance claim, nor were they ever supposed to have any right to claim any additional compensation
or “indemnity," on account of their necessary traveling expenses, while traveling their respective circuits. And we here say respectfully, that it is impossible for us to avoid the conviction of the truth of this (as we deem it) legitimate conclusion, or presumption, that the revising convention, by incorporating this clause into the fundamental law of the State, must have acted with full reference to the previous usage and the then existing regulations upon this question ; and may not such uniform practice ke regarded as a fair exponent of their intentions? We think it may. Hence does it not clearly follow, that if the precedent be once established that the traveling expenses of the Judges under the new Constitution be a legitimate claim against the State, the claim could be no less so for fifteen years under the old Constitution, both for the Judges and State officers and all other State agents, when not especially “otherwise provided for by law;" thus at once involving the State in an indebtedness for this item alone, under the old and new Constitution, of some hundreds of thousands of dollars, and as we believe, without the slightest sanction by the Constitution, and entirely unlooked for by the people when they voted for its adoption.
Here we may be permitted to suggest that any Constitution may be either openly and wantonly violated, or its plainest and most solemn sanctions artfully evaded. We think it can by no means follow, because the salary of the judges " adheres to their office,” that their fixed circuit traveling expenses, as has been said, are not by the Constitution included in that salary. A different supposition would make the traveling expenses of all the State officers, from their residence to the capital, and there, both under the old and new Constitution, a good and valid claim against the State. Would not such a precedent clearly involve the allowance of the traveling expenses of all the State officers and judges from and to their residences, as often as they might deem such travel necessary or convenient? Would it not also extend back before the present Constitution, as well as since ? On this principle, what would hinder the officers of counties, and even of townships, from preferring legal claims against their several districts for their traveling expenses while necessarily employed in the business of their respective offices under the statutes ? Would not such a presumption be deemed preposterous ? We apprehend that the people who by their act adopted the Constitution, and who also voted for the judges and State officers under it, understood too well what they were doing to sanction a principle so vague and loose in its application. We think they regarded it just as much the duty of the judges, to entitle them to their salaries of $1,500 to find their way, from time to time, as best they might, to their respective court houses in the several circuits, as that of the State officers, to entitle them to their salary of from $800 to $1000, to find their way to the capital, and to pay their own expenses while there, without any charge to the State for their traveling and boarding bills. Who denies that the salary of the President of the United States "adberes” to his office, and that no special provision for his various personal expenses, aside from his salary, are made in the U. S. Constitution ! If the principle be correct, of paying all salaried officers their traveling expenses, &c., because salary "adberes” to office as has been said, unless it be expressly prohibited in the Constitution, why shall we not then pay a few millions to our Presidents and their heirs, to pay their traveling expenses to the White House, and their living while there! We believe the allowance of the usual circuit traveling of the judges, or of the known and expected traveling expenses of the State officers, would be an exceedingly hazardous stretch of power, and a dangerous precedent, under our present State Constitution, which would result in much embarrassment in adjusting claims brought against the State. We would regard the carrying out of such a precedent as equivalent to the entire destruction of all intended safeguards of the Constitution against all extravagances in public expenses, which was one of the main evils for which the people demanded a remedy, at the revision of the Constitution. Our hands must be clear of this sacrilege. The foregoing considerations must be deemed sufficient to establish the point, that a true construction of the Constitution is adverse to the allowance of any claim against the State from the judges or State officers, of the traveling expenses which were well known to the constitutional convention and thus provided for by salary; such as traveling to or from their respective places of official business, as definitely fixed, and enjoined by the Constitution itself.