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James. Auditor, v. Cromwell.

ing same filed as part of her petition the certificate of William Cromwell, chief clerk of the Senate, to the effect that the itemized account of plaintiff, amounting to $314.75, was just and correct as a contingent expense of the Senate. The court thereupon overruled the demurrer to the petition as amended, and sustained the demurrer to the answer, with leave to amend, and, the Auditor declining to amend, a judgment was entered directing him to draw his warrant upon the State Treasurer in favor of plaintiff for the amount of her claim, to-wit, $314.75. From this judgment the Auditor prosecutes an appeal.

For appellee it is admitted that the only authority for allowing this claim is that given by section 342, Ky. St. 1903, which is as follows: "The pay and mileage of the Lieutenant Governor, President pro tem of the Senate, and Speaker of the House of Representatives, and members of both houses of the General Assembly, the compensation to the officers of the two houses, except the chief clerks thereof, to be made on the certificate of the respective clerks of the amou nt due; the compensation of the chief clerks. upon the order of each house stating the amount due; all other contingent expenses of the General Assembly, upon the production of the vouchers, countersigned by the clerks of the respective houses." Section 249 of the Constitution provides: "The House of Representatives of the General Assembly shall not elect, appoint, employ, or pay for, exceeding one chief clerk, one assistant clerk, one enrolling clerk, one sergeant at arms, one doorkeeper, one janitor, two cloakroom keepers, and four pages; and the Senate shall not elect, appoint, employ, or pay for, exceeding one chief clerk, one assistant clerk, one enrolling clerk, one sergeant at arms, one doorkeeper, one

James, Auditor, v. Cromwell.

janitor, one cloakroom keeper, and three pages; and the General Assembly shall provide by general law for fixing the per diem or salary of all of said employes." This section of the Constitution is clearly a limitation upon the right or power of either the House or Senate to hire officers and employes. It was evidently passed for the purpose of preventing either body from creating needless offices at the expense of the State. The case of Walker v. Coulter, Auditor, 113 Ky. 814, 68 S. W. 1108, is very like the case at bar. In that case Walker was employed as a porter in the Senate at $2.50 per day for 71 days. His employment covered the entire time that the Legislature was in session; whereas, in the case at bar the time during which appellee rendered services extended throughout the full legislative session. A distinction is attempted to be made between the two cases, in this: that in the case of the porter an attempt was made to charge the State for a fixed price per day during the legislative session, whereas, in the case at bar appellee has presented a claim for the sum which she says her services during the legislative session were reasonably worth. It is a distinction without a difference. The one is no more contingent than the other. It is evident that the makers of the Constitution intended that all the work of the legislative bodies should be performed by the officers and employes as defined by section 249, above referred to. And it may be presumed that in designating the names and numbers of such employes the Constitutional Convention was fully advised; for, in addition to having among its members men of broad experience in the conduct of the affairs of both House and Senate, it had access to the public records showing the number of employes that had theretofore been

James, Auditor, v. Cromwell.

required. That they did so is made manifest by their express declaration that neither body should pay for the services of any employe other than those designated in section 249. It could hardly be contended that the chief clerk had authority to do that which the Senate itself is expressly prohibited from doing. It is urged that work of the character which was performed by appellee was absolutely necessary in order that the business of the Senate might be expeditiously carried on. This argument would address itself most forcibly to the Legislature as a reason why the Constitution should be amended so as to give to the respective legislative bodies more employes than those designated in section 249, if it should be found necessary to have such employes in order to properly conduct its business. Such an argument, however, has no place, and cannot be considered, here. Again, it is urged that these services should be paid for as a contingent expense of the Senate. We cannot agree with learned counsel that an employment of this character could be paid for as a contingent expense; for, if one copyist could be so employed and paid, the number could be multiplied ad libitum, and the very purpose and aim of the constitutional provision defeated. Counsel for appellee rely upon the case of McDonald v. Norman, Auditor, 95 Ky. 593, 16 Ky. Law Rep. 137, 26 S. W. 808, to support her contention, but in so doing they evidently overlooked the fact that in the more recent case of Walker v. Coulter, Auditor, this court said, in referring to the McDonald case: "That case can, therefore, not be considered authority upon the construction of this clause of the Constitution (section 249) and in the light of this clause was incorrectly decided and would doubtless not have been so decided had the

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James, Auditor, v. Cromwell.

attention of the court been called to the constitutional provision." Again, on June 11, 1893, section 1902 of the Kentucky Statutes was enacted, which provides: "No other employes shall be elected, appointed, employed, or paid for, without the joint action of both houses." So that, even if it should become necessary for either house to have the services of additional employes, before they could be legally employed, a joint resolution to that effect would have to be passed, if section 1992 is constitutional, which is not now decided. With the case of McDonald v. Norman, Auditor, practically overruled in Walker v. Coulter, Auditor, and section 249 of the Constitution prohibiting the Senate from giving to appellee the employment for which she seeks compensation, we are of opinion that the trial court erred in overruling the demurrer to the petition, as amended.

The case is therefore reversed and remanded, with instructions to sustain the demurrer to the petition, as amended.

Western Union Teleg. Co. v. Williams.

CASE 56.-ACTION BY J. M. WILLIAMS AGAINST THE WESTERN UNION TELEGRAPH COMPANY FOR DAMAGES FOR FAILING TO DELIVER A TELEGRAM.September 30.

Western Union Teleg. Co. v. Williams

Appeal from Rockcastle Circuit Court.

L. F. JOHNSON, Special Judge.

Judgment for plaintiff, defendant appeals-Reversed.

1. Discovery-Right of Defendant to Take Plaintiff's Deposition. -Plaintiff's residence being more than 20 miles from the place of trial, and he being a practicing physician, so that were he not the plaintiff his deposition could be taken, defendant has an unrestricted right to take his deposition under Civ. Code Prac. section 606, subsection 8, providing that a party may be examined as if under cross-examination by the adverse party, either orally or by deposition as any other witness; and it is not enough that plaintiff appears at the trial, testifies, and subjects himself to cross-examination. 2. Continuance-Taking Depositions.—The right being given defendant, by Civ. Code Prac. section 537, to begin taking depositions immediately after filing his answer, his motion for continuance till such time as he could take plaintiff's deposition (which he had a right to take, but which plaintiff had refused to give), and the deposition of witnesses to rebut his testimony, should have been granted; the answer having then been filed.

3. Damages-Evidence-Mental Anguish.-The right to recover for mental anguish being limited to cases of the nearest relationship, plaintiff may merely show such relationship, and the anguish is inferred; and, where by delay in delivering a telegram he reached his mother after her death, while, had the telegram been delivered promptly, he would have arrived two hours before the time she died, he may not, as bearing on his anguish, show that he, with another

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