APPROPRIATION, CHARLES S. COOPER. Unpaid clerk hire of State Land Board for prior years is an executive expense, and constitutes a first-class claim, and the General Assembly has power to appropriate for the same. Denver, Colo., November 20, 1903. HON. JOHN A. HOLMBERG, Auditor of State, State Capitol. Dear Sir-I have referred to me an act appropriating money to pay Charles S. Cooper for money paid for clerk hire in office of State Board of Land Commissioners. The act reads: "There is hereby appropriated out of any money in the treasury, not otherwise appropriated, the sum of nine hundred dollars ($900) to pay Charles S. Cooper for money advanced to pay for clerk hire in State Land Office from May 1, 1897, to February 1, 1899." Session Laws 1903, page 54. The clerk hire of this board properly belongs to appropriations of the first class. Any money laid out to pay for clerk hire for conducting the business of that department should have been cared for in the general appropriation bill. The department is created under the Constitution and it is clearly an executive expense. If the Fourteenth General Assembly deemed it proper and expedient to reimburse Mr. Cooper for money expended by him for clerk hire in the conduct of the business of that department, then it found that the general appropriation bill of that year was short and deficient in the amount appropriated for clerk hire, and in reimbursing Mr. Cooper it only makes good that which it omitted to provide for at the proper time. I am of the opinion that the revenues of each biennial period are devoted to the payment of the expenses originating within that period, according to the proper classification, but I am also of the opinion that Mr. Cooper should be paid out of any revenue for the years 1897, 1898, 1899, 1900, 1901 and 1902, that are now in your hands and not yet disbursed in the payment of any other expenses. His appropriation being for an executive expense has the first claim upon the revenues of those years, and I would, therefore, advise the payment of the appropriation. Yours truly, N. C. MILLER, APPROPRIATION. Index-General appropriation. Syllabus-The title of the general appropriation bill should embrace nothing but the appropriation for the ordinary expenses of the executive, legislative and judicial departments of state, interest on public debt and for public schools. Denver, Colo., May 1, 1903. HON. JOHN A. HOLMBERG, Auditor of State, Denver, Colorado. Dear Sir:-I have your inquiry concerning the title of the general appropriation bill of the Thirteenth General Assembly. The title of that bill reads as follows: "An act to provide for the ordinary and contingent expenses of the executive, legislative and judicial departments of the State for the fiscal years 1903 and 1904, and to create a State Auditing Board, with certain duties herein prescribed with reference to the disbursement of the contingent fund, and the regulation of the hours of employment, and services of the different employes thereof." The Constitution, concerning the general appropriation bill, reads as follows: "The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the State, interest on the public debt, and for public schools. All other appropriations shall be made by separate bills, each embracing but one subject." I think that nothing can be clearer than that all matters contained in the general appropriation bill, aside from the appropriation for ordinary expenses of the departments mentioned, are improperly included. The constitution of this Auditing Board is of a very doubtful nature, and I would therefore caution you that in the payment of moneys you act largely upon your own discretion and judgment as State Auditor. The evil of creating new departments which do not properly belong to the executive, legislative or judicial departments, within the statutory provisions of those terms, is a growing abuse which the institutions of the third class must, sooner or later, protest against, because the increasing size of this general appropriation is acting injuriously to the institutions of the State, especially those of the third class. All those bureaus and departments customarily provided for by the general appropriation bill belong to the fourth class, under the legislative act of 1897. Their expenses are not the ordinary expenses of the executive, legislative and judicial departments and they have no right in the bill; yet, the aggregate expense of these bureaus and departments is more than $150,000 for the biennial period. It is only a question of time until the institutions of the third class will bring some suitable action to prohibit the payment of moneys to these departments out of the general appropriation fund. I think, however, that you will be protected in the payment of such moneys under the general appropriation bill, until such action is brought, and would therefore advise that you do not embarrass the operation of such departments and bureaus by raising the point yourself. Yours truly, N. C. MILLER, ASSESSORS COLLECT FOR PREMIUM ON BOND. County treasurer should repay county assessor amount paid on his bond, given under section 42, chapter 3, S. L., 1902, provided it is within statutory limit, and county treasurer may then deduct it from funds remitted to State Treasurer. Denver, Colo., June 16, 1904. A. D. ARCHULETA, ESQ., Treasurer Archuleta County, Pagosa Springs, Colorado. Dear Sir-I am in receipt of a letter from Mr. H. J. Bostwick, your county assessor, requesting me to write you in reference to your paying the premium on his official bond as assessor, given under and by virtue of section 42 of chapter 3 of the Session Laws of 1902, and would say that by the last paragraph of said section, you should repay the amount paid by Mr. Bostwick for such surety bond and deduct the same from the funds in your hands belonging to the State, as it appears that the amount of the bond is $2,000, and that the premium of $10 does not exceed one-half of one per cent. per annum on the amount thereof, as limited by statute. The receipt given by the assessor, Mr. Bostwick, for the repayment to him by you of the amount of the premium will be your voucher to the State Treasurer. The portion of section 42 above referred to is as follows: "In case the amount of such bond or obligation does not exceed the sum of fifty thousand dollars, the cost of (or) expense 1 of furnishing such bond or obligation shall not exceed one-half of one per cent. per annum on the amount thereof. In case the amount of such bond or obligation shall exceed fifty thousand dollars, then the cost of furnishing such bond or obligation shall not exceed one-half of one per cent. on fifty thousand dollars of said amount, and shall not exceed one-quarter of one per cent. of the amount thereof in excess of said fifty thousand dollars; provided, that such sum paid for such surety bond shall be repaid to each assessor by the treasurer of the county, and deducted from any funds in his hands belonging to the State." I am sending a copy of this opinion to Mr. Bostwick at his request. Yours truly, N. C. MILLER, By HENRY J. HERSEY, SPECIAL MEETINGS BOARD INSANE ASYLUM. A majority of the board can act. The meetings must be held at the asylum, unless otherwise agreed by entire board. Special meetings may be held at asylum upon proper notice to members. Denver, Colo., July 9, 1903. DR. W. W. GRANT, Commissioner Asylum for Insane, Denver, Colorado. Dear Sir-In reply to your letter of the 20th inst. asking for an opinion as to whether special meetings of the board can be held elsewhere than at the State Asylum, I beg to reply as follows: 1. The statute does not provide any other place for holding meetings than at the State Asylum. Session Laws 1899, page 258, section 3. 2. The rule appears to be well settled that the entire board must act unless the statute authorizes a majority to do business. This authority must be either by express grant, or by implication. People v. Lothrop, 3 Colo., 428, 457. Williams v. School District, 21 Pick., 75. Throop on Public Officers, Sections 105 and 107. Section 3 of the act of 1899 provides: "If any commissioner shall fail to attend the regular meetings of the board for a period of one year after his appointment, his office shall thereby become vacant, and shall be so declared by a resolution of the board, and a certified copy of such resolution shall forthwith be transmitted by the board to the Governor, who, thereupon, shall fill the vacancy by appointment." It does not seem probable that the Legislature intended the meetings of the board, for a period of one year, to be of no force and effect on account of the absence of one of the members. Throop on Public Officers, Section 110, states: "However, in order to enable a majority to act, without a meeting of all, or notice of such a meeting to the minority, it is not necessary that the statute should expressly confer such a power; it suffices that the power may be reasonably inferred from the provisions of the statute, or the nature of the power conferred." And Section 111 of the same work states: "Obviously the rule which requires all the members of a body exercising powers of a public nature to meet before the majority can perform any valid official act must often lead to delay and inefficiency in the transaction of the public business. This inconvenience is often obviated by a statutory provision enabling a majority to act; and with reference to corporations, including municipal corporations, the English authorities relax the strictness of the rule by allowing a quorum, or a majority of the whole number of the governing body, to act at a stated meeting of the body, where all are bound to attend, or at a special meeting of which all have had notice." Section 112 of the same volume says: "This principle has been applied by some of the American authorities, particularly in the state of New York, to the acts of public officers, and other persons exercising powers of a public nature, where there is no statutory provision in the way of such application, and even where the common law rule, as declared by the English courts, has been substantially embodied into a statute. In the earliest case where this modification of the common law rule was suggested, the court, referring to the three trustees of a school district, said: * * * ""There can be no doubt that two could contract against the will of the third, if he was duly notified or consulted and refuse to act.' ""And, in a subsequent case in the same State, referring to the same officers, it was said: ""The rule of the common law, which is now declared by statute that where an authority is to be exercised by more than one officer, they must all concur in its exercise, or all meet and consult and a majority agree to the act, is subject to the neces |