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lieve that the people, who were aiming to prevent in future similar past abuses, would have adopted a constitution which would defeat its own ends, by allowing the Judges, State officers, members of the Legislature and all other State agents, to charge the State their traveling expenses while traveling to and from their respective places of official business, as defined and definitely fixed by the constitution? Can such a thing be even a fair supposable case ? Would not such a reflection be too severe upon the people, and upon the sagacity of such a body of mon as composed the constitutional convention? If we turn to page 106 of the proceedings and debates of the convention that revised the constitution, we find that, article 9 being under consideration, Mr. Hascall “ moved to amend so much of the article as relates to the judges of the Supreme Court, by striking out $1500 and inserting $1200."

Mr. Morrison, in opposing this amendment, used the following language: “I do not believe that we can draw talent and ability upon the Bench with a less salary than that reported. I did not think that a motion would be made to put it lower, as the Judges have received that amount for the last fifteen years. The traveling and other expenses must at the leas! amount to $500, and a man cannot support his family as cheaply as if he was all the time at home. I hope it will not be reduced.”

Mr. Roberts moved to insert $1,600. In dividing the question, the motion to strike out was lost--yeas 17, nays 48. On page 807 we find that Mr. McClelland made a proposition to strike out the entire article relating to salaries, believing it wise, considering that “times and circumstances change,” and as the duties of the Judges increased and others diminished, to leave the whole matter to be regulated by the Legislature, according to circumstances at the time of acting upon it. This proposition was discussed pro and con by several members, and on the succeeding page Mr. Chapel, in opposing it, holds the following language: “But the gentleman from Monroe proposes to strike out of existence the salaries of the Judges as well as all the others. What will follow? You will have the eight Judges and the whole of the State officers besieging the Legislature, wanting large salaries. I have seen this sort of things as long as I want to see it. We ought to fix the salaries and pay the Judges good round salaries—pay them well. A man of talent, a good lawyer, one who will give good decisions, should have more than $1,200. If we reduce the salaries of the Judges to $1,000, including the expenses which they must unavoidably incur for holding the circuit courts, what kind of Judges shall we have on the Bench ?”

In view of the foregoing, we feel that we have no alternative-no discretion left us, as we cannot doubt that the members of that conven. tion intended to fix, and really supposed that they had fixed the compensation of the Judges, as well as the State officers, at their respective salaries mentioned in the constitution, including the ordinary circuit traveling expenses of the State Judges, such as traveling to and from the capital, and their expenses of living while at the capital, the place designated in the constitution for keeping their offices. We cannot but regard the argument in favor of the allowance of the traveling expenses of the Judges, which is based upon the inequality of travel to which they are subject, as wholly invalid; it being simply one of the incidnets of accepting public office under different circumstances. For instance, the Governor, Auditor General and State Treasurer of this state have each a salary of $1,000. Like that of the Judges, of $1,500, they may have been designed to be equal.

But who can make circumstances, duties and ability equal ? Now suppose the Treasurer happens to reside at the capital, but the Governor and Auditor General at the extreme upper part of the Peninsula, who will deny that under the present constitution they must find their way, without expense to the State, to the capital, the place fixed by the constitution for keeping their official business—while the Treasurer may remain at his own fireside ? Is this equal ? The State cannot in all cases make public office of equal advantage or disadvantage to its citizens. This must often depend upon circumstances. The same principle that would allow the ordinary traveling expenses of the Judges would clearly allow the ordinary traveling expenses, as well as board, of all the State officers, and other State agents when on official duty. The precedent once established, it must be impartially carried out to the full extent of its legitimate application.

An extraordinary traveling expense, beyond what could have been definitely known and therefore could not be provided for by law," or otherwise, and which might be absolutely demanded by the best interests of the State to be incurred, either by the Judges or State officers, under their oath of office, we think might constitute one of that class of claims "not otherwise provided for by law," for the discretionary consideration of the Board of State Auditors.

The traveling expenses of special committees of the Legislature, sent on business for the State, and in no way otherwise previously " provided for by law,” we think would also properly belong to this class. Such discretion, however, should also be exercised with due deliberation and caution, and subject to the laws which must control the action of the Board. Some discretion is, and ever has been vested, in all such cases, in that body that bad the power of auditing claims against the State, whether the Legislature or Board of Auditors, to audit incidental expenses which could not, from the nature of the case, be otherwise previously and definitely provided for by law or salary. Some extraordinary emergency might arise, when the Executive, the Attorney General, Treasurer, and others of the State officers or Judges of the Supreme or Circuit Court might be required, from the exigency of the case, for the highest interest of the State, to travel beyond what could have been foreseen, and thus provided for, either by law or salary, by a Constitu tional convention. Who will believe that the Coustitution, or the peo ple who adopted it, over designed or expected that a State officer should travel on some special duty, to secure the most obvious interests of the State, on his own expense, on a salary of $800? We should regard such a supposition as simply absurd; and yet, his oath of office, to act in good faith to the State, may occasionally make it his indispensable duty to incur such traveling expenses, and public officers have been reimbursed, and sanctioned by the people. The foregoing considerations, we cannoo but regard as the most manifest common sense view of the whole design of the Constitution upon this important question, which we fully believe is in entire accordance with all past precedent, both as to the Judges, State officers, and other State agents, which practice, up to this time, both before and since the revision of the Constitution, whenever a proper

discretion has been wisely and honestly exercised, has been fully sanctioned by the Legislature and the people. Finally, we do with confidence submit this question to the people, from whom we derive our highly responsible official position, and to whom we must render our account.

From the constitution itself, from all past precedent before and since


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its revision, and from what seems to us its unmistakeable design not-
withstanding our sympathies for others not to say for ourselves also
which most certainly would lead us to a different decision from the one
we arrived at, yet we have been utterly unable to avoid the conviction
that it would have been a violation of what seems to us the most ob-
vious spirit and design of the constitution, to audit or allow any thing
either to the Judges or State officers, or other State agents, for any trav
eling expenses, for any amount of travel which must have been def-
initely known at the adoption of the constitution, and either expressly
or impliedly enjoined by it, and thus provide for by salary, however low
in " these times” this salary may seem to be. The board then cannot
consent to do an official act, which it seems to them might well be re-
garded more in the light of an act of benevolence, than one of consti-
tutional and legal requirement. To prevent what appears to us, would
be the disastrous moral effect of violating the Constitution on account
of a change of times since its adoption, we prefer to endure a constitu-
tional evil, should the people so deem it, until it can be remedied in a
constitutional way.
The final decision of this question has been one of much deliberation
and trial to the Board of State Auditors. But no considerations
which might perhaps have proved our own quiet self interest, nor
the high esteem and sincere personal regard for the distinguished class
of our fellow citizens whom it more especially concerns, nor the learned
arguments of a number of legal gentlemen, including that of the able
and esteemed Attorney General of the State, which we have carefully
considered, have been sufficient to afford us a seeming justification for
arriving at any other conclusion. With all due respect to the opinion
of any who may honestly differ with us on this important question, we
are still compelled to decide it according to the deliberate and abiding
convictions of our last judgment.


State Auditors.


[ No. 16. ] PETITION of Frederick Hart and 103 others, to amend the Militia

Law of this State.
To the Honorable Legislature of the State of Michigan:

The undersigned, citizens of the county of Lenawee, would respectfully pray that your honorable body pass a law to amend the Militia Law of this State, in such manner as to incorporate therein the spirit and meaning of a sketch of a law adopted by the State Military Convention, assembled at the city of Detroit on the 10th day of October, A. D. 1854, and found on pages 19, 20 and 21, of the annual report of the Adjutant and Quarter-Master-General of this state for the years 1853 and 1854, and amended at State Military Convention held at Kalamazoo January 21st, 1857. Dated 31st December, 1856. Fredrick Hart,

W. H. Smith,
A. M. Adams,

C. W. Kendell,
A. 0. Holmes,

A. M. Reed,
Henry Hurlbut,

G. M. Menike,
F. M. Luke,

James Jordan,
L. Z. Sholes

C. A. Haskins,
L. G. Luther,

Henry Hart,
B. F. S. Pony,

F. C. Beaman,

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