SCHEDULE N. Official opinions, issued during the fiscal year, ending June 30, 1901, which are deemed to be of interest. IN RE MILITARY MATTER,-Sale and Re-sale of Military Goods.Moneys paid to the state by the Henderson-Ames Co., on account of the pretended sale and re-sale of military goods in 1899, and held to the credit of the suspense account, can they be legally transferred to the military account, and used by the Military Board? Lansing, July 6, 1900. Hon. Roscoe D. Dix, Auditor General, Lansing, Michigan. My Dear Sir-You request me to give you my opinion as to whether or not any of the moneys which were paid by The Henderson-Ames Company to the state on account of the pretended sale and re-sale of military goods in 1899, which are now held to the credit of the suspense account, can be legally transferred into the military fund account, and subject to be used by the military board. I think best to preface my conclusion with a statement of the facts. relating to such payment, as I understand them, so that it may be seen what these payments covered, and also show the grounds on which my opinion is based. The state was the owner of a large quantity of military stores, the exact value of which it is not material at this time to state, which had been purchased under and by virtue of the special act of the legislature, passed for the purpose of providing equipment for the troops of the state, in contemplation of a call from the president at the time of the Spanish war. By a fraud committed upon the state by QuarterMaster General White, a pretended sale was made of these goods to The Henderson-Ames Company, in the name of Illinois Supply Company, a fictitious concern, with the understanding that The Henderson-Ames Company would re-sell, or pretend to re-sell a part of the same goods to the state for the use of the national guards. This scheme was carried through, and there was drawn from the military funds of the state, through vouchers or orders drawn by White upon the state treas urer, a number of thousand dollars, such vouchers or orders being made payable to The Henderson-Ames Company in purported payment for such military goods as were involved in such sale. In addition to the goods thus pretended to be sold, The Henderson-Ames Company did actually sell to the state, and for the use of the national guards, certain new goods amounting to several thousand dollars. Out of the total moneys paid by the state to The Henderson-Ames Company, there was turned over to White $30,880.26; there was retained by The Henderson-Ames Company, above and beyond the legitimate value of new goods sold the state, the sum of $10,621.12. In addition to the moneys received from the state on old goods re-sold to the state, there were goods inventorying about $2,700, which were in fact sold by White and The Henderson-Ames Company to other parties, and out of which White received $300.00, and The HendersonAmes Company $67.00. We found on investigation that the $2,700.00 of goods above mentioned, were in fact, worth as near as could be ascertained $1,667.00, as many of them were made for use in Cuba, and not of much consequence elsewhere, and from the $1,667.00 we deducted what White and The HendersonAmes Company had received for them ($367) and it left unaccounted for $1,300.00. We also found that The Henderson-Ames Company had charged in its bills, and received of the state for more new goods than shipped, $966.04, and had put an extra charge on new goods actually shipped, of $1,788.55 more than the same were worth, and had paid out of the money of the state $1,199.88 in carrying forward the transaction. These sums are included in the $10,621.12 above mentioned. The figures of the whole transaction, exclusive of a legitimate charge by The Henderson-Ames Company for the new goods shipped showed as follows: Received by White out of money paid by state. Received by The Henderson-Ames Company: In addition to this, we charged to The Henderson-Ames Making in all To this we added interest at 6 per cent for six months.. Making in all $30,880 26 300 00 $31,180 26 $6,666 67 1,788 55 966 04 1,199 98 67 00 1,300 00 $11,988 14 359 64 $12,347 78 The above is the amount paid by The Henderson-Ames Company, and constitutes the fund now under consideration. It will now be seen that this money paid to the state by the HendersonAmes Company may be arranged into three groups. First: Money paid by the state out of the military fund $1,199.88 Third: The two items of $67 for shoes and $1,300 received by The Henderson-Ames Company, value of old goods and which were not re-sold to the state.. Total $2,754 59 7,866 55 1,367 00 $11,988 14 As to the item of $2,754.59 contained in the first subdivision, I think that there can be no question but that that is properly payable into the military fund, for it is moneys which have been paid out of that fund without any consideration therefor. As to the second item of $7,866.55, I feel quite clear that this is properly payable into the military fund. This money was not only fraudulently obtained from the state, and if so, then fraudulently from the military fund, but also without consideration for it, and purported to have been drawn out to pay for goods already belonging to the state, and as it was paid out of the military fund, it ought to be returned there. I recognize the fact that these goods for which this money is purported to have been paid, have already been distributed and used by the national guard, and there no doubt will need to be an adjustment in some way between the two accounts, that is, the special Spanish war fund account, (if that is what it is called) and the general military account, and it may require an act of the legislature to settle the matter beyond controversy. But while the distribution of these surplus goods, purchased under the Spanish war fund act, among the national guard of the state may have been, and was undoubtedly in violation of the terms of the Spanish war fund act, yet the payment of money from the national guard fund for these goods which at the time belonged to the state, was a fraudulent and illegal diversion of the national guard fund, which can be rectified by a restoration of the money thus illegally disbursed by returning it when recovered, to the fund from which it was illegally taken. If the legislature objects to the use of these goods by the national guard, a proper charge against the military fund can subsequently be authorized. I can not see any objection to transferring this $7,866.55 to the military account, subject to future adjustment or legislation, as the case may be. If the military account has any contract relations with the Spanish war fund account it must rest upon a contract express or implied, to pay for the goods which it has used out of that fund, and to pay therefor what the goods were reasonably worth, but such liability could not rest upon the unlawful and fraudulent act of third parties, either as forming the basis of a contract, or with reference to the value of the property used by the national guard. What I mean by this, is, that in an adjustment of these two accounts, if the military fund is to be charged for the goods which belong to the Spanish war fund, but which have not been used by the national guard, such military fund must be charged for the goods at their real value, irrespective of how much The Henderson-Ames Company received for them on the fraudulent sale. These goods may have been of more or less value than The Henderson-Ames Company received on such pretended re-sale, and for this reason I say that the fraudulent act of White in fixing with The Henderson-Ames Company an amount which he should turn over to the last mentioned company out of the military fund on such fraudulent sale could not form the basis of an adjustment between the Spanish war fund and the military fund. As to the third item, being for $1,367, I cannot see that this has anything to do with the military fund at all. This is not for money paid out of that fund, but is in fact, for the conversion of a part of the Spanish war fund property. I therefore, think that part cannot legally at present, be transferred or paid to the military fund. (See note*.) Yours respectfully, BARBERS, REGISTERING OF.-May register after the 90 day limit after act 212 public acts 1899 took effect by paying fee of one dollar and filing necessary proof, but would be subject to prosecution by continuing in business after expiration of the 90 days. Lansing, July 6, 1900. Charles Rieger, Esq., Secretary, Detroit, Mich. Dear Sir-I am in receipt of your letter of the 2nd, inst., enclosing communication from Schuyler G. Haase and Hon. E. L. Hamilton of Niles, Michigan. The question to be considered is whether or not persons who are engaged in the business of a barber at the time act 212 public acts of 1899 took effect, and who had been so engaged for a period of two years, are required to take an examination before your board and pay therefor the sum of five dollars as provided by section 6, where such persons do not register within ninety days after the taking effect of said law, as provided by section 7. *NOTE.-See also People v. Arthur F. Marsh, page 10. People v. Wm. L. White, Ex-Quarter M. G. & Fidelity & Dep. Co., page 31, and In Re Military Matter, page 36. It will be noticed that section 6 contains the following proviso: "Provided, This section shall not apply to barbers now engaged in the business of a barber in this state, and who have been so engaged for a period of two years." Section 7 provides "Every person now engaged in the business of a barber in this state and who has been so engaged for a period of two years or more, shall within ninety days after this act shall take effect, file with the secretary of said board a statement verified by his oath to be administered by a notary public of the state, showing his name, place of business, post office address, the length of time that he has actually served as a barber, and shall pay to said secretary the sum of one dollar and receive and shall be entitled to receive from said board a certificate as a barber, and shall pay annually thereafter the sum of fifty cents for a renewal of said certificate." In placing a construction upon this provision, I would say that all persons engaged as barbers at the time said act took effect, and who have been so engaged for a period of two years or more in this state, are given ninety days within which to register. It would be a violation of said law for any other person during said ninety days to engage in said business without a license issued by your board. A person eligible to registration under section 7 upon the payment of a fee of one dollar and the filing of necessary proof, could lawfully register at any time after the lapse of said ninety days without submitting to an examination and the payment of a fee of five dollars, but would be subject to prosecution for the violation of said act, if he continued in said business after the lapse of said ninety days without the necessary license. This, in my opinion, is the proper construction to be placed upon said act and is in accordance with the intent of the legislature as evidenced by the language of sections 6 and 7 of said act. Yours respectfully, HORACE M. OREN, Attorney General. * PAROLED CONVICT.-Convict cannot be brought to trial on any offense committed prior to commencement of his term. Status of Paroled Convict the same as though confined in prison. Sault Ste. Marie, Michigan, July 17, 1900. C. H. Thomas, Esq., Prosecuting Attorney, Hastings, Michigan. Dear Sir-I am in receipt of your letter of the 13th inst. in which you state that one Allen McOmber, a prisoner of the State Penitentiary at Jackson, who is at present on parole, has pending against him three other charges for offenses alleged to have been committed prior to his sentence to Jackson. You ask whether or not he can be brought to trial upon these other charges during the period of his parole. My understanding of the law is that a convict serving a sentence in prison cannot be tried on any previous charge during the term of his |