incorporated in the act of May 5, 1863, although it would seem to have no application to a simple sale of scrip, and to be limited in its operation to States, selecting lands open to entry within their own limits, instead of receiving land scrip. In the one case, there would be the expenses of selection, management and sale to be provided for; in the other, there might not be any expenses whatever. Whether it will become necessary hereafter to advance out of the treasury the cost attending the selection, management and sale of the lands entered with the scrip received under the act of Congress, will depend upon whether such a transaction as that authorized by the act of 1866, is to be considered a sale, or an agency with a transfer of title, for the purpose of facilitating the object in view. If the former, it would appear that these expenses may be paid as provided for in the agreement with Mr. Cornell, from the moneys received on sales, without evading the provisions of the act of Congress. If the latter, the "entire proceeds" of such sales, without any deduction, would have to be paid into the treasury, and the expenses provided for in some other way. On the first supposition, in conformity with which, it will be seen by the agreement, the Commissioners of the Land Office have acted, the avails of the scrip coming into the treasury, would be decreased in amount. On the second, they would be increased, but at the cost of the General Fund. In conclusion, it is respectfully suggested, that there should be some constitutional guarantee of the inviolability of the fund contemplated by the act of 1866, and of its application to the objects and purposes mentioned in the act of 1865, so far, at least, as such a guarantee can be properly extended to a contract not yet fulfilled. Respectfully submitted. THOMAS HILLHOUSE, Comptroller. (XXV.) COMMUNICATION FROM THE COMPTROLLER, GIVING CORRESPONDENCE RELATIVE TO THE POWER OF THE COMPTROLLER TO CONTINUE PAYMENT OF THE EXPENSES OF THE CONVENTION. STATE OF NEW YORK: Hon. WILLIAM A. WHEELER, COMPTROLLER'S OFFICE, ALBANY, November 20th, 1867. 867.} President of the Constitutional Convention : DEAR SIR-I inclose herewith, for the information of the Convention, copies of a correspondence with the Attorney-General relative 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, 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 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, Comptroller. STATE OF NEW YORK: COMPTROLLER'S OFFICE, ALBANY, October 7th, 1867.} 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 particularly 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? Very respectfully yours, I have the honor to acknowledge the receipt of your communication of the 7th inst., propounding to me certain inquiries relating to the act, chapter 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? The law in effect tells you, pay the members six dollars per day for every day of the session of the Convention; but the session must be ended before the next general election!" 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 violate 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 session in the legislative act, would permit continued sessions without limit, and impose the duty on successive Legislatures, by the high obligations of "good faith," to make appropriations for its expenses until the Convention determines to conclude its labors. I think such a construction is erroneous, and advise you to decline to pay the members and officers of the Convention for attendance after the time indicated in the act for a submission to the people." DEAR SIR-The time fixed in the act of the Legislature of this State for a submission of the Constitution to the popular vote, having expired, I am advised by the Attorney-General, that I cannot legally continue to pay the per diem of the members and officers, and other expenses of the Convention. Wishing to do everything in my power to facilitate the completion of the important work in which the Convention is engaged, I write to ask if your institution will not pay the members and officers on the presentation of the usual certificates of service, signed by the president, relying upon the Legislature, soon to convene, to sanction such payment, when the proper warrants can be drawn on the treasury. I shall recommend such action in my report, and have no hesitation in expressing the opinion that the necessary authority will be granted. Very respectfully, yours, (Signed) THOS. HILLHOUSE, Comptroller. [A. 3.-S. 3.] NATIONAL COMMERCIAL BANK, Hon. THOMAS HILLHOUSE, Comptroller: MY DEAR SIR-In reply to your communication of this date, asking this bank to advance such sums as may be necessary to meet the expenses of the Constitutional Convention now in session, in anticipation of legislative appropriation, I have to reply, that I am instructed by the Finance Committee to make such advances, on interest, in the confident assurance that such legislation will not be wanting. Yours respectfully, (Signed), |