before the account can be audited," would seem to settle this construction beyond a doubt.

For the other items contained in voucher 453, being the 1st, 2d, 3d, 5th and 6th, I can find no law directing the services charged for, except the 6th item, and for that no such rate of compensation is fixed by law as that specified in the bill of the printer. There may have been a resolution of the senate, directing the printing of the journal of the last day; if such was the fact, they were correctly allowed, but I am clearly of the opinion that there is no law authorizing the payment of the several sums charged for printing "documents for governor,' "memorial to congress," and "for publishing laws in state paper," and that so much of the warrant of the auditor general as covered an allowance for those charges, was illegal. The state printer is only directed to do such printing as is "required by law," by concurrent vote of the two houses, or "by the resolution of either house, for the state, or some of the executive officers thereof;" and no printing done without such authority, can become a charge against the state, or should be allowed by the auditor general, without the previous action of the legislature.

The last four items of voucher No. 506, as contained in the document referred to, are, in my opinion, sanctioned by law, and the auditor general is authorized to draw his warrant therefor, for the reason that the services were directed, and the rate of compensation fixed by law; and the whole of the charges contained in voucher 526, were properly allowed for the same reason. So much of voucher 506, however, as relates to "the report of the special committee to investigate board of internal improvement," is very differently situated.

This charge, as it appears in the printer's bill, is wholly unfounded, there being no authority whatever for printing that number of copies of the report.

By a resolution of the house of representatives, of the 26th day of March last, four hundred copies of the report of that committee were authorized to be printed and distributed under the direction of the governor. This, however, is only authority for printing the report, but not the documents; and by an examination of the printed copy, it will be seen that the report comprises only ten pages, whilst the documents accompanying, occupy over five hundred. I come to the conclusion, therefore, that viewed in every light, the charge for this report is illegal and unauthorized.

To extend a proper understanding to this whole subject, I would remark further, that whilst in my opinion the auditor general was justifiable in drawing his warrant for the amounts due in all the above cases where the "services were directed, and the rate of compensation was fixed by law," yet I am equally

satisfied that no such warrants, when drawn, were entitled to payment from the treasury, unless in the language of the constitution, in consequence of appropriations made by law. The treasurer is equally independent, in his official duties, with the auditor general, and under the constitution and laws, equally responsible for the rightful performance of those duties; and it would surely seem to be his appropriate province to determine, whenever a warrant of the auditor general was presented, whether there was any money in the treasury for its payment, or what is the same thing in effect, whether there was any appropriation made by law for that purpose, and as this should be decided, the warrant would be paid, or its payment declined.

The question then would occur, was there any appropriation, either general or specific, to meet the whole or any portion of the bill rendered by Dawson & Bates, for printing, as contained in the document referred?

The laws are so vague and indefinite, that it is quite uncertain whether any appropriation was made at the last session of the legislature to cover the payment of these charges, unless the joint resolution of March 26th is to be taken as equivalent to an appropriation for printing and binding the laws; that resolution, however, merely authorized the auditor general to draw his warrant on the treasurer, but does not set apart the money to meet the amount of the bill, or direct its payment in terms; but I am of the opinion that the treasurer was justified in paying the amount drawn for by the auditor general, under the resolution, as it contained enough to make it evident that it was the intention of the legislature to make an appropriation for the expenditure authorized.

Besides this resolution, there is, also, upon the 223d page of the session laws of 1840, an appropriation of over six thousand dollars, to pay Dawson & Bates, for printing the journals and documents of the last legislature, this being an appropriation for the same object as that class of charges in the bill in question, I cannot resist the conclusion, that it is a legal justification to the treasurer for the payment of that amount in addition to the sum paid for printing and binding the laws.

It is, perhaps, doubtful whether this was, in reality, intended to apply to the payment of the work specified in this bill; but no such doubt arises from the law itself; that is a clear and specific appropriation, "for printing the journals and documents of the present legislature," and as we can only look at the language of the act itself, for the purpose of discovering the intention of the legislature, I am satisfied that the construction given above, is fully warranted by the law.

There remains, in addition, only two or three small items, which, according to the views above taken, were proper subjects of charge against the state, and the payment of these was

provided for by the appropriation for the contingent expenses of the legislature. It may also be contended, with great propriety, probably, that the whole bill, which was entitled to an allowance at all, might properly have been paid under the appropriation last mentioned. No such course, however, has usually been pursued in this state, but heretofore, it has been the practice for the printer to present bills for every thing done, to the legislature, for adjustment and allowance.

This course of proceeding was necessary whilst the law prescribed no rate of compensation; but since the law has been changed, I am at a loss to discover why the accounts for printing should not take the same course as those for other services. It cannot be denied, that for the last few years, the question of state printing has occupied more of the time of the legislature, than any other single subject; nor can it be disputed, that an accounting officer might just as safely be intrusted with the settlement of the accounts of a state printer, as those of any other officer; provided, the law directing the service, and fixing the compensation, was clear and specific.

From the very nature of things, there must be many cases where the accounting officer is left to exercise a sound discretion; but if the general rules for his government are plain and comprehensive, and easily understood, and the cases requiring his action are clearly pointed out by law, there need be no difficulty in the performance of his duties.

That such is the fact, in the cases referred to in the resolution under consideration, it is believed, will not be pretended by any one; and from an examination of the different laws referred to above, the undersigned has found them so extremely vague, indefinite and uncertain, that it is a matter of just surprise, that more errors and difficulties have not occurred, than in reality appear to have been discovered, and from a careful examination of the whole subject, it must appear evident to every one, that important amendments are necessary to be made to the laws regulating the duties of auditor general and treasurer, and that far more care should be taken in making the various annual appropriations, in order to avoid similar difficulties in future.

Hasty legislation, occasioning the passage of laws couched in vague and indefinite language, render it almost impossible for an accounting officer to perform his duties in a proper manner, even with the best intentions; and no officer can be deemed justly reprehensible for his acts, however erroneous, so long as those acts have been occasioned by the uncertainty of the laws under which his duties have been performed.

All which is respectfully submitted.

P. MOREY, Attorney General.

ATTORNEY GENERAL'S OFFICE,
Detroit, February 3, 1841.

Hon. E. P. HASTINGS, Auditor General:

SIR-At your request, I give you the construction of section thirteen, of chapter one, of title three, of the first part of the revised statutes, as I suggested in conversation with you some days since. The first part of the section provides, that the auditor general "shall state all accounts, and liquidate the claims of all persons against the state, in cases provided for by law, and give his warrant therefor, according to law." Under this provision, I am of opinion, that when an account is presented to the auditor general for allowance, where the service is directed, and the rate of compensation is fixed by law, that officer is clearly authorized to "give his warrant therefor, to the person rendering the service;" and this construction is strongly enforced by the next portion of the section, which requires him to "examine and report to the legislature, all claims against the state, where the law does not fix the rate of payment, or where further legislative action is required."

The third provision of the section relates to cases where the claim or account has been liquidated by the action of some other department or officer than the auditor general, and money has been specifically appropriated by law for the payment thereof. The pay of members of the legislature, and the incidental expenses of the two houses, are cases of this kind; where the auditor general has nothing to do but to draw his warrant, for such services as may have been directed by the act of the legislature.

I am aware that it may be asserted, that there is an apparent discrepancy between the construction which I have given to the first provision of the section referred to, and the fourth section of the twelfth article of the constitution; but I apprehend it is a rule too well settled, to require elucidation at this time, that where a ministerial officer is positively directed to perform a given act, by the law of the supreme legislature, he is not at liberty to refuse; nor can he justify his disobedience of such law, by any interposition of his own construction of the constitution, in opposition to the plain enactments of the law-making power.

His duty is to obey the law as he finds it in the statute book, until the judiciary shall have declared it void on the ground of its unconstitutionality.

P. MOREY, Attorney General.

[No. 66.]

Report of the committee on claims relative to the claim of Hicks & Co.

The committee on claims, to whom was referred the claim of Hicks & Co., for balance due them for iron, respectfully report:

That the claim of Hicks & Co., is for a balance due them on account of a quantity of iron purchased or ordered by governor Mason, under authority of a joint resolution approved April 6, 1838, which said joint resolution instructs the board of internal improvement to contract for one hundred miles of railroad iron. The contract, or rather the order to Hicks & Co., of the city of New York, to import for the use of the state, the iron referred to, is contained in a letter written, (as appears by what purports to be a copy thereof, and which is herewith submitted,) by direction of governor Mason, and bears date May 7, 1838. This contract, or order, was afterwards modified, as will appear by reference to House documents for 1840, vol. 1, page 93, so as to call for ninety miles of iron, instead of one hundred miles, as originally designed. Of this iron, several hundred tons have been received by the state, and used in various ways, and several hundred tons have been paid for, which yet remain in the hands of Hicks & Co., and a large amount, also, remains in their hands, that has not been paid for, making in all some fifty to sixty miles of iron yet in their possession, which they refuse to deliver, until the state shall settle their account.

Your committee have submitted the account of Hicks & Co., to the late acting commissioner, who had the direction of the matter, and who is, of course, somewhat familiar with the subject, and it is his opinion that the account is correct, and ought to be immediately paid. They have also resorted to such other means of information as was within their reach, and the result of their inquiries has been to confirm their impressions in favor of the correctness of the account, and the justice of the claim, and accordingly, present herewith, a bill making an appropriation for its payment.

March 13, 1841.

JAMES B. LARUE,

Chairman.