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plainly here as elsewhore. A different rule would lead to the most perplexing uncertainty, doubt and confusion. So that the real question here is not what the members of the Convention expressed in debate, but what they have expressed in the Constitution as formed and signed by them. But I have been informed by a leading and highly intelligent member of the Convention, that in point of fact, those among them who were by their profession peculiarly fitted to judge of the legal effect of the Constitution upon the point in controversy, were of opinion that the point in question did not touch the incidental expenses of the judges, and that the Board was clothed with full power to allow them.

Another objection is, that the same construction which would allow these claims would authorize the Board to allow the traveling expenses and other actual incidental expenses of the members of the Legislature, their board, for instance, while attending the sessions. To this objection it may be replied that the Constitution requires that they shall render their ordinary services at the Seat of Government and at no other place, that their compensation for holding their seats and performing their ordinary official duties, shall be three dollars a day, “ ten cents and no more for every mile actually traveled, going to, and returning from the place of meeting, on the usually traveled route, and for stationery and nowspapers, not exceeding five dollars for each member during any session, but shall not receive at the expense of the State, books, papers, or other perquisites of office, (i. e., pecuniary advantages allowed by law for exercising their office,) not expressly authorized by this Constitution." Such is to be the “ compensation of members” for traveling to and from their homes, and attending sessions.

These provisions are particularly clear and specific. They cover the whole ground of travel and attendance to and at the seat of goverment, and leave no doubt upon the mind of the reader that this compensation is all they are to receive therefor. But should the House find it necessary to send a committee to a distant part of the State to procure information, or to do any act in the process of legislation, and they should proceed on that service, can it be doubted that the Board of Auditors would have the power to indemnify them by repaying their actual expenses? The above specific provisions do not cover such a case, and unless the Board has such a power, the committee would be without re. medy. And such a case would not, it is conceived, differ in principle from the one under consideration.

Should it be said that these special provisions in favor of members tend to exclude the idea that it is the intention of the Constitution to al. low similar claims to the Judges, I reply that if this specification is to have such an effect in one case it must in another; that it must be applied in all cases where the pay or indemnity of a public officer is not expressly provided for by the Constitution itself, and that the Legislature becomes thus disabled to allow fees to public officers and agents; a consequence at once injurious to the public service, and absurd in itself. So that no such concession from the mere fact that these are special provisions for the compensation of members, can be drawn.

On the other hand, the absence of any such special provision respecting the expenses of the Judges, affords a strong implication that the Constitution intended to leave them among other incidental and unforeseed expenses, to be ascertained and settled by the Board of State Auditors. Indeed the practice has been, to admit and allow the


of the Judges while holding the Supreme Court, for room rent, fuel, stationery, lights, &c., a practice which can be justified only upon the principle here asserted. It is no answer to say

that these

expenses are allowed by statute, for if the Constitution itself creates a barrier, no statute can remove it, and the allowance is illegal and void.

In further elucidation of the views I have taken, it may be of service, to glance at the former Constitution and legislative practice under it. It provides in article 4, section 18, that "the members of the Legislature shall receive for their services a compensation to be ascertained by law, and paid out of the public treasury, but no increase of the salary shall take effect during the term for which the members of either branch shall have been elected, and such compensation shall never exceed three dollars a day.

It seems at least as clear that the word compensation in this clause, excludes all indemnity for actual expenses for travel, &c., as that article 9 of the present Constitution, excludes similar payments to the Judges, and yet the Legislature under the old Constitution, uniformly allowed the members their mileage, stationery, &c., and their right to do 80 was never questioned. They even allowed the members from Mackinac and Chippewa ninety dollars each, for necessary expenses incurred after the session.

Again, the old Constitution, article 5, section 18, provides that “the

Governor shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the time for which he has been elected." Yet it is well known that the Legislature in 1837, (L. 1837, page 291,) appropriated five hundred dollars from the treasury for the payment of his house rent, and I am not aware that the mere legality of the appropriation has even been questioned. Certainly the treasurer did not hesitate to make payment, in either of the cases I have mentioned. To the considerations already presented, may be added the fact of no small weight in itself, that not only have the members of the bar generally, throughout the State, expressed in their memorials sent to the board, opinions in favor of the legality of those claims, but that all of the Judges of the Supreme Court, and the District Judge of the Upper Peninsula, who as well as the late lamented Justice Whipple, was a member of the Constitutional Convention of 1850, have united in presenting them, and have thus affirmed their legality. We cannot suppose for a monient, that these high functionaries whose duty it is to expound the Constitution and laws, and who may as a Court of Justice, at any time be appealed to by the humblest ind vidual to pass upon the powers of the Board, would thus have sanctioned the principle without a careful consideration of all objections, or without the most sincere and conscientious conviction of their legality and justice.

The attentive consideration which your letter has led me to give to the question, has but strengthened the opinion, which from the first I have entertained, that under the Constitution you have full power to audit and allow the claims, and I can see no distinction between those of the Circuit Judges and that of the District Judge of the Upper Peninsula.

I have the honor to be, gentlemen,
Very respectfully your obd't servit,


Attorney General.


COLDWATER, February 29, 1856. To the Board of State Auditors:

Gents-As the subject of the allowance of the traveling expenses of the Judges has occupied public attention for some time past, a final decision of that important question seems to be called for, and the rea800s therefor made public.

Will you, at your earliest convenience, dispose of this question, and furnish us with the grounds of your final action for publication, and much oblige your obedient servants,

And many other citizens.



Lansing, Mich., March 6, 1856. In compliance with the foregoing request, as well as a strong sense of public and official duty, the undersigned have the honor to submit the following statement:

1st. After mature deliberation, the Board of Auditors have finaly acted upon and decided, by a majority vote, that they have no power, under the present Constitution, to audit and allow to the Judges of the Circuit and Supreme Courts, their claims submitted to us, for the amount of their necessary traveling expenses, incurred while on their

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