cannot imagine that such was the intention of the framers of the Constitution, or of the people who adopted it. I do not believe it to have been their intention that while one Circuit Judge, by being domiciled in a county which of itself constitutes a circuit (as Wayne does now), is relieved from traveling expenses in holding his court, that another should be compelled, at his own expense, to travel thousands of miles yearly in holding his courts in new and remote counties, where the expense of traveling annually absorbs a large proportion of the sum granted as salary. Such an intention cannot be imputed, for it implies a gross inequality, for which no reason is apparent on the face of the Constitution, much less in the functions to be exercised, for they are the same in both cases, are of equal dignity and necessity, and equally important to the State.

I infer therefore that such was not only not the intention of the convention and the people, but that their intention was to place all the Judges in equality of compensation. Certainly the language of the ninth article plainly implies this, for each is to receive an annual salary for holding the office and exercising its functions at the places assigned by law, and the only mode of securing this equality is the payment of such expenses by the public. How is it to be effected, unless by making to each Judge the expenses he necessarily incurs in going from his home, holding his court, and returning? To say that the people intended to throw upon him personally this serious burden, one which no man without an ample fortune can sustain without serious inconvenience, is to impute to them an intention that their Judges shall sustain a large share of the cost of serving them.

My opinion, then, is that the Constitution, upon a just and reasonable interpretation of its terms, contemplates the payment of such actual and necessary expenses, and that when incurred, they become a valid and legal charge against the State. Such expenses are neither "salary" nor "compensation," both which terms are synonymous as applied by the

Constitution to the State officers and Judges. They both imply the payment of money by the State to the proper officer for holding and exercising his office, or to speak more precisely and accurately, for holding the office. It cannot be necessary to cite adjudged cases on this point; no decision, no commentary, can add clearness to the terms in which the Constitution expresses the proposition. It does not require them to pay their own expenses incurred in performing their official duties, and as such a requirement is in direct hostility to the express provision giving to each a certain salary or compensation for holding the office, and an equal one to all the others, the conclusion is to my mind irresistible that the object of the provision cannot be obtained without the payment of those expenses. The claim here is not for "salary," nor for " compensation," nor for "perquisites," nor "fees," but only for indemnity. It is for the repayment of money actually paid out by the Judges in discharging their official duties, without incurring which expenses it was not possible for them to perform those duties. These expenses were part of the indispensable means of exercising the functions of their office at the times and places established by law.

It seems to me that were it the case of a man employing an agent, on a distinct service, to perform which it was absolutely necessary for the latter to travel and incur expenses, and for the performance of which, at the proper place, he was to receive a stated sum, there could be no doubt or hesitation, without a stipulation to the contrary, the principal would, upon the most familiar principles of justice, be held to pay the expenses of his agent in reaching the spot and returning. Here, perhaps, I ought to stop, but as several objections have been taken to the allowance, founded upon constitutional grounds, I will consider a few of them.

The first is, that it was the intention of the convention that these salaries should be in full of all claims on the part of the Judges. Where the evidence of the intention is sup

posed to be found is not known to me; certainly not in the public debates of the convention who framed the Constitution. A perusal of these debates fails to throw any light on the subject in discussion, and even if they should upon their face indicate that such was the intention, and it appears from the language they have actually employed in the instrument, when interpreted by the ordinary rules applied by courts of justice, that such was not their intention, the debates ought to have no influence. The well settled principle of law, that the intention and effect of a written document whose terms are free from ambiguity, are to be derived from the instrument itself, and not from the contemporaneous discussion of the parties, applies as plainly here as elsewhere. 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 newspapers 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 government, 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 re-paying 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 remedy. 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 allow 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 pro

vision respecting the expenses of the Judges, affords a strong implication that the Constitution intended to leave them among other incidental and unforseen expenses, to be ascertained and settled by the Board of State Auditors. Indeed, the practice has been, to admit and allow the expenses of the Judges while holding the Supreme Court, for room rent, fuel, stationery, lights, etc., 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, etc., 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, etc., and their right to do so 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