Christopherson v. Reeves 44 S.D. 634, 184 N.W. 1015

BICKNELL, J.

The petitioner asks a writ of mandamus, directed to the respondent Reeves as State Auditor, commanding him forthwith to issue to petitioner a warrant for the sum of $200, being his expense allowance as a member of the Legislature of the state of South Dakota, under the provisions of -chapter 279, Laws of South Dakota for 1921. The petition recited, in substance, that the petitioner was a duly elected and qualified member of the House of Representatives from the Tenth district of Minnehaha county, S. D., who was in regular attendance at the session of the Legislature of South Dakota beginning on the 4th of January, 1921, and adjourning on the 4th of Marclj, 1921; that *640at said session, of the Legislature there was passed an act known as chapter 279 of the Session Laws of South Dakota for 1921, which is set out in full, and which provides for the payment of $200 to each member of the Senate and House of Representatives of South Dakota:

“In consideration of the expense incidental to traveling to the state capital and the increased expense of living at a place other than his legal residence during the regular session of the Legislature,” the sum above prescribed, “to cover the expenses of such members incident to their being away from home in the discharge of their duties,” etc.

The petition also recites the passage of chapter 50 of the Session Laws of South Dakota for 1921, which is the appropriation act providing funds to meet the requirements of the law above referred to; the passage of chapter 279 with an emergency clause and its approval by the Governor; the election and qualification of the respondent as State Auditor; the presentation by. petitioner of a certified voucher for the amount of money above referred to; the refusal of the respondent to draw the warrant upon such voucher; the residence of petitioner in the city of 'Sioux Falls, Minnehaha county, S. D., and his necessary absence from his home in the discharge of the duties of his office. To this petition the auditor has demurred, and the state of South Dakota, added as a party in intervention, joined in the demurrer.

It is the contention of the Attorney General, appearing for the Auditor and for the state, that the statute granting the sum of $200 to each member of the Legislature for expenses and the purposes therein specified is unconstitutional, violating section 6, art. 3, of the 'Constitution of the state of 'South Dakota; that it conflicts with the provisions of section 3 of article 12 of the Constitution; and that it is in violation of the terms of article 4, § 13, of the Constitution, prescribing and fixing the duties of the State Auditor, in that it prevents him from exercising and discharging his duties, and in support of these contentions it is urged that the Legislature may not in advance of an expenditure audit and estimate the amount thereof; that the effect of the act in question is to increase the compensation of the public officers to whom the sum of $200 is available, in violation of the aforesaid constitutional provision; that the grant of expense money in a lump sum *641is in violation of- the spirit and provisions of the 'Constitution; that the Auditor is deprived of his functions if the expenses are estimated in advance and a fixed sum for such expenses is determined and allowed; and) that the expenditure violated the provisions of section 3, art. 12, of the Constitution, in that it provided additional compensation for services after the -same had been partly rendered, and in this connection the Attorney General pointed out that the act was passed on January 31st, when the duties of the Legislature, under the terms fixed by the Constitution, had been almost half performed.

1. This court, in the case of McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361, L. R. A. 1915E, 858, Ann. Cas. 1917A, 1046, and in the case of State ex rel. Payne v. Reeves, 184 N. W. 993, decided at this term of the court, has disposed of the question of the propriety of a lump sum for expenses, and the accompanying' question of the power of the Legislature to provide expense money for constitutional officers.

As was said by this court in the case of McCoy v. Handlin, supra:

‘‘The Legislature had the right, if deemed best as a matter of public policy, to enact the law which it did enact, provided it did not make the allowance greater than the expenses it was designed to cover; and it was for such Legislature to determine a reasonable and proper amount. It is clear that the Legislature did not intend*, in the enactment of such legislation, to increase the salaries of the judges, or grant them any perquisite or emol-' uments for the discharge of their duties, but only intended to assure them, in so far as possible, that for the performance of their official duties alone, and not for the performance of such duties ,;and the payment of expenses incident thereto, they should receive the salaries provided by law for the performance of such duties.”

Speaking further on the same subject, the court said:

“One question will be found running through all the decisions wherein courts have passed upon the validity of statutes providing allowances to public officers, to-wit: Was the purpose of the Legislature to increase the salary, or was its purpose merely to save such salary, so that the officer would, in fact, receive the whole thereof, for the performance of his official duties.”

*642The court having sustained the proposition in that decision and in the more recent one above cited, the law upon the point is settled, unless the peculiar language of the section of the Constitution: here before us necessitates a different decision in this proceeding.

It is the contention of the Attorney General that the words “five cents for every mile of necessary travel,” in section 6 of article 3 of the Constitution, necessarily imply the idea that this is a provision for expense, and that the expression “no other pay or perquisite except per diem and mileage” necessarily excludes the idea of any reimbursement for expense upon any theory whatsoever.

[1] It is elementary that in construing a constitutional or statutory provision the words must be taken, and are presumed to have been used, in their usual and ordinary sense, unless there is a constitutional or statutory definition of the word, which, of course, would control, or unless the context is so plainly repugnant to the usual and ordinarily accepted meaning of the word as, of very necessity, to impose another meaning upon it.

Having the foregoing principle in mind, let us examine the language of section 6 of article 3 of the Constitution. It provides :

“The terms of the office of the members of the Legislature shall be two years; they shall receive for their services the sum of five dollars for each day's attendance during the session of the Legislature, and five cents for every mile of necessary travel in going to and returning from the place of meeting of the Legislature on the most usual route.

“Each regular session of the Legislature shall not exceed sixty days, except in cases of impeachment, and members of the Legislature shall receive no other pay or perquisite except per diem and mileage.”

[2] The word “pay,” as used in the foregoing portion of the Constitution of South Dakota, means compensation. 6 Words and Phrases, Eirst ISeries, 5243. The word “perquisite” is variously defined as follows:

“An allowance paid in money or things beyond the ordinary valued salary or fixed wages for services rendered, especially a fee allowed by law to an officer for a specific service.” Webster.

*643“Emolument or incidental profits attaching to an office or official position beyond the salary or regular fee.” Black, Law Dictionary.

“Perquisite means something gained by a place or office beyond the regular salary or fee.” Bouvier’s Law Dictionary.

The foregoing definitions of this word, the correct interpretation of which is highly important here, are quoted with approval in the case of Ware v. City of Battle Creek, 201 Mich. 468, 167 N. W. 891, L. R. A. 1918E, 673, 674. In that case it is held that the word “perquisite” means emolument or profit beyond the salary paid to the officer in question, and, the court proceeds, “cannot be said to mean moneys which were allowed him' for expenses, because there was no profit or emolument to him. in the allowance for office rent which he had to disburse.” Thus it will be seen that the ordinary accepted meaning of the word “perquisite” is a reward, a compensation, a profit, or a gain arising out of, or received because of, the possession of a public office. Nowhere 'is the word used as synonymous with, or inclusive of, expenses.

Quoting the second paragraph of section 6 of article 3 of the Constitution, the Attorney General asks, after having recited the words “no other pay or perquisite except per diem and mileage:”

“Could the framers of the Constitution have used language which would with more force indicate their intention that the members of the Legislature should receive no compensation or expenses, other than per diem or mileage?”

We have italicized the word “expenses” in the quotation from the Attorney General’s brief to bring to notice the fact that he himself had used language which more strongly and explicitly indicates the meaning which he contends should be given the Constitution than the language of the Constitution indicates; indeed, which reads into the Constitution a meaning which we cannot find there.

On the other hand, we are satisfied that the words “for their services,” used in the first paragraph of section 6, refer to the per diem allowance, and also to the mileage allowance; and this interpretation is strengthened by the fact that in the second paragraph of the same section the words “pay or perquisite” are used with reference to the words “per diem and mileage;” in other *644words, the per diem and mileage are allowed for the services performed as “pay and perquisites,” that is, as compensation, reward, or gain arising from the enjoyment of the office, and not for the payment of expenses.

[3] It is easy enough to' argue that the constitutional convention meant that the mileage should go to defray expenses, but they did not say so, and we have no right, 35 years after the event, to read into their work that which does not appear on its face. If they intended the per diem above mentioned to be allowed for expense money, the use of the word “perquisite” in the succeeding paragraph is incorrect and improper. We have no right to presume that they used it in other than its usual sense. And it is entirely consistent with logic and reason that the members of the Legislature, coming from different parts of the state, traveling different distances, which necessitated varying periods of actual service, should have been paid by a fixed per diem during the period of actual attendance at the Legislature, and by further compensation adjusted and equalized among them by reference to the distance they traveled. Such a way of fixing compensation is neither novel nor unreasonable. We conclude, therefore, that an intelligent and correct construction of the language of the Constitution imposes the necessity of holding that the words “per diem” and “mileage” are referred to in section 6 of article 3 of the Constitution as compensation for services. This being so, under the familiar principle that the Constitution is a limitation and not a grant, it follows that the Legislature, not being forbidden by-the 'Constitution, possesses inherently the power to provide expense money, and the provisions of law recited in the petitioner’s bill are not in conflict with this section of the Constitution.

Our attention was called, on the argument, and by the briefs of counsel, to the case of State ex rel. Weldon v. Thomason, 142 Tenn. 536, 221 S. W. 491. The facts, the discussion of the law iii this case, and the provisions of the .Constitution of Tennessee, as restricted by the interpretation by the Supreme Court of that state, render it instructive and convincing and fully in line with conclusions hereinbefore announced, and it is cited with approval, but without relying upon it entirely, for the reason that the constitutional provisions' of the several states differ in such important *645particulars as to render the interpretation of them by the courts available to us rather for comparison and by way of argument than as precedents. We have also examined and considered the following authorities, which sustain our conclusion and are in point: Throop on Public Officers, 1442; 29 Cyc. 1427, 1429; Briscoe v. Clark Co., 95 Ill. 309, 311; State v. Atherton, 19 Nev. 332, 10 Pac. 901, 910; Kirkwood v. Soto, 87 Cal. 394, 25 Pac. 488; Newmon v. Lester, 11 Cal. App. 577, 105 Pac. 785; People ex rel. Follett v. Fitch, 145 N. Y. 261, 39 N. E. 972; State v. Sheldon, 78 Neb. 552, 111 N. W. 372; Milwaukee County v. Halsey, 149 Wis. 82-85, 136 N. W. 139; Russ v. Commonwealth, 210 Pa. 544, 60 Atl. 169, 1 L. R. A. (N. S.) 409, 105 Am. St. Rep. 825.

The Attorney General, in his brief, quotes at length from, and relies upon, the decisions of the Appellate Court of Illinois in the cases of Fergus v. Russell, 270 Ill. 626, 110 N. E. 887 and 270 Ill. 304, 110 N. E. 130, Ann. Cas. 1916B, 1120, where an injunction was sought against the auditor of public accounts to restrain him from issuing warrants for various expenses to the members of the General Assembly. Statutes had been passed appropriating sums for mileage and for telephone services to the members of the Assembly under a Constitution which provided (section 21, art. 4, Constitution of Illinois) that—

“Members of the General Assembly are prohibited from receiving, in addition to such salary as may be fixed by law, ‘any other allowance or emolument, directly or indirectly, for any purpose whatever, except the; sum of $50 per session to each member, which shall be in full for postage, stationery, newspapers and other incidental expenses and perquisites.’ ”

Thus it will be seen that the framers of the Constitution of that state provided for expenses, mentioned them expressly in the Constitution, and used the word as distinguished from the word “perquisite,” and the interpretation of this Constitution must, of necessity, have precluded any other allowance for mileage or for other expenses. If the word “expenses” had occurred in our Constitution, we would not hesitate for one moment' to declare the law unconstitutional. It is the 'absence of this word, and the absence of any provision limiting the rig*ht of the Legislature to provide expenses, which makes it difficult for us to see the applicability of this case to the matter at bar.

*6462. But it is contended that the provision of a lump sum of expense money deprives the Auditor of the discharge of his constitutional duties. Section 13 of article 4 of our Constitution provides that the powers and duties of the Auditor shall be as prescribed by law. The Legislature has prescribed the duties of the Auditor generally by sections 5342 to 5352, both inclusive, of the South Dakota Revised Code. Under the terms of section 5342 it is made the duty of the Auditor to examine all claims against the state, and for the sums which shall be found due from the state to issue warrants payable at the state treasury. Section 5345 provides for verified accounts. It also prescribes the manner in which these accounts shall be presented, itemized, etc. And it is contended by the Attorney General that section 4, art. 12, of the Constitution, providing- for an itemized statement of all receipts and expenditures of the public money to be published annually in the manner provided by the Legislature, and that the same shall be submitted to the Legislature at the beginning of each regular session, is violated, because the Auditor cannot itemize the expense accounts of the officers to whom the money for expenses is granted in a lump sum.

[4] This, it seems to us, is not logical. His account will, in any event, exhibit the warrants issued to the several persons entitled to receive these payments and the amount of each warrant, and, as the law is the authority for paying them, his accounts will exhibit everything that could be required. Indeed, it is difficult to see the force of the contention that the Auditor is in anything hindered in the discharge of the duties of his office by this prac-. tice, for he must still ascertain that the person presenting the claim is by law entitled to do so; that the amount is the amount fixed and allowed by law; that the claim is presented in the form required by law; when he has done these things he most certainly may be said to have audited the account. To be sure, the law in question provides that the account shall be paid on certified vouchers, and this might be in conflict with section 5345 of the Revised Laws of 19x9. If it is, indeed, impossible to construe it in harmony with those provisions, it necessarily follows that a repeal of that section, so far as it pertains to the expense allowance of the Legislature, would have been affected. We hold, however, that the law, while in pari materia with the provisions of the *647Code, deals with a subsequent provision for expense money, and should be construed as supplemental to and not repugnant to the provisions of the earlier enactment.

3. Coming now to the contention that the law in question is unconstitutional 'for violation of section 3, or article 12 of the Constitution, it is argued that chapter 279, Laws of 1921, operates to grant extra compensation to a public officer in violation of the constitutional prohibition. And in this connection it was also contended that the court should examine the question of whether or not the emergency clause, added to chapter 279, Laws of 1921, operates to render the act effective ¡before the 1st of July, 1921, and it was argued that the law did not take effect until July 1, 1921, and that even if the allowance of $200 to each member of the Legislature for expenses would be a valid enactment as to legislators at the next session, it cannot apply to the members of the present Legislature who served during the 1921 session.

The entire argument, whether directed against this law because of the emergency clause, oi\ directed against it because of the allowance of $200 a year for expense money, is based upon thes ame hypothesis, that is, that the effect of this act is to increase the compensation of a public officer. So it is urged by counsel in a supplemental brief that the act creates “a new right to compensation for expenses,” etc. This quotation,' with its involved and extraordinary phraseology, is an excellent index to the character of reasoning which we must, of necessity, adopt, if we are to sustain this contention.

[5] We hold that chapter 279, Laws of 1921, was not an act providing compensation, but, on the other hand, that it provides expense money for a perfectly legitimate purpose: W'e hold that the word “compensation,” as employed in section 3, art. 12, of the Constitution of South 'Dakota, is synonymous with salary, pay, or emolument, and is intended to convey the idea of reward for, or compensation for official services; that it does not convey the idea of the repayment of expenditures allowable by law. It follows, as a matter of course, that the payment of expenses, not being prohibited by the direct language of the 'Constitution nor any necessary inference arising therefrom, is a valid and proper subject for legislative enactment.

We do not feel called upon to decide, and therefore refrain *648from expressing an opinion, as to whether the emergency clause contained in chapter 279, Laws of 1921, is or is not operative. The law became effectual, in any event, before the commencement of this proceeding, and, as it provides for expense money only, is operative now without regard to the time of its taking effect.

In this connection it is well to recall the language of the Supreme Court of Tennessee in the case of Weldon v. Thomason, previously cited:

“That the expenses of public officers incurred in the performance of their official duties are distinct from and not included in the compensation allowed them, unless authoritatively so declared, is well established upon reason and authority, and the apparently uniform concensus of opinion in those cases wherein the question has -been considered is to the effect that constitutional prohibitions against change in the compensation fixed for public officers are not intended to be construed as limitations upon legislative authority to provide for the expenses of such officials.”

It is urged that-to sustain chapter 279, Laws of 1921, will nullify section 6 of article 3 of the Constitution. This we do not concede. This section refers to compensation, and as such will be upheld and enforced by the courts, but, as pointed out by the Supreme Court of Tennessee (Wendel v. Thomason, supra), where the Constitution is silent as to allowance for necessary expenses of public officers, it is to be presumed that it left that matter to the discretion of the people, acting through their Legislature.

The writ of mandamus should be granted, and it is so ordered.

HAYE'S, P. J.

(dissenting.) Article 3, § 6, of the state Constitution, provides that the members of the Legislature shall receive for their services the sum of $5 per day for each day’s attendance during the session of the Legislature, and 5 cents for every mile of necessary travel in going to and returning from the place of meeting of the' Legislature. The $5 per day is a recompense for services and necessarily attendant personal expenses at Pierre, and the mileage covers time and expense in reaching the place of meeting. The allowance of $200 in this act is in conflict with the closing paragraph of this section of the *649Constitution 'declaring that the members of the Legislature shall receive no other pay or perquisite except per diem and mileage.

The fundamental law declares, in effect, that members of the Legislature shall receive $5 a day for each day’s attendance, receive also 5 cents a mile for necessary travel, and no other compensation. An allowance of $200 for expenses incident to travel to the state capital and for increased expense of living there during the session is compensation both for travel and attendance additional to that fixed by the .Constitution. The Legislature has no power, under the guise of “expense,” to add $200 to the per diem and mileage prescribed by said section 6.

RICE, J.

(dissenting.) The writer does not agree with the majority of the court as to the construction of the Constitution or the statute involved. The real question involved in this proceeding is the constitutionality of section 1 of chapter 279, Laws 1921, which is as follows:

“Be it enacted by the Legislature of the state of South Dakota: Section 1. That whenever a member of the state Legislature, whose legal residence shall be at some other place than the state capítol, shall attend any regular session of the state Legislature at the state capítol there shall be paid such member in CONSIDERATION OE THE EXPENSE INCIDENTAL TO TRAVELING to the state capítol and the increased expense of living at a place other than his legal residence during' the regular session of the Legislature the fixed sum of two hundred dollars ($200.00) to cover the expenses of such members incident to their being away from home in the discharge of their duties, which fixed sum shall be paid to each such member of the Legislature at the close of the regular session which such member attended upon certified vouchers of each such member being filed in the office of the State Auditor.”

This láw contravenes section .6 of article 3 of the Constitution, fixing the term of office and pay of members of the Legislature, providing:

“They shall receive for their services the sum of five dollars-for each day’s attendance during the session of the Legislature, and FIVE CENTS FOR EVERY MILE OE NECESSARY TRAVEL in going to and returning from the place of meeting of the Legislature on the most usual route, * * * and members *650of the Legislature shall recive no other pay or perquisites except PER DIEM AND MILEAGE.”

The Constitution having expressly provided that the members of the Legislature shall receive both per diem and mileage, by implication prohibited them from receiving either directly or indirectly anything more for any purpose. “Expressio unius est exclusio alterius.” If the Legislature had sought to enact a law in direct violation of the inhibition of the Constitution, it could scarcely have used more apt language.

“The object of construction, as applied to a written Constitution, IS TO GIVE EEEECT TO THE INTENT OE THE PEOPLE IN ADOPTING IT. In the case of all written laws it is the intent of the lawgiver that is to be enforced.” Cooley’s Con. Lam. (5th Ed.) p. 68.

The majority opinion devotes much space to commenting upon the construction the courts have given to certain words of the Constitution,' and reached the conclusion that the provision under consideration for the payment of $5 for each day’s attendance and 5 cents per mile for travel is for COMPENSATION and not for EXPENSES, and that the prohibition against the members receiving any other PAY or PERQUISITE except PER DIEM and MILEAGE does not prohibit them from receiving their living expenses while at Pierre and expenses for travel in going to and returning from Pierre. The word “mileage” in the Constitution is the equivalent of “traveling expenses.” In other words, if the framers of the 'Constitution, instead of writing “mileage,” had written “traveling expenses,” it would have meant exactly the same thing.”

“MILEAGE is a compensation allowed by law to officers for their trouble and expense in traveling on public business.” 2 Bouv. Law Diet. -2209.

This definition has been universally adopted by the courts.

Mileage “is defined in the -Century Dictionary as 'payment allowed to a public functionary for the expenses of travel in the discharge of his d'uties, according to the number of miles passed over.’ The same definition substantially is found in Bouvier’s and other law dictionaries.” Richardson v. State, 63 N. E. 593, 594, 66 Ohio St. 108.

“The term 'mileage’ has a well-defined legal meaning, and *651signifies usually compensation allowed by law to officers for their travel, and expenses in traveling on public business. Richardson v. State, 10 O. C. D. 458, 460 (citing Bouv. Law. Dict. vol. 2, p. 409.)” 5 Words and Phrases, First Series, p. 4502.

The Supreme Court of Wyoming adopts Bouvier’s definition. Board v. Blakely, 20 Wyo. 259, 123 Pac. 77, Ann. Cas. 1915B, 584.

At the time the Constitution was adopted Webster’s Unabridged Dictionary was recognized' as the standard dictionary. About that time the Legislature enacted a law requiring each school district to purchase a Webster’s Unabridged Dictionary. If the average voter, wishing to know the meaning of the constitutional provision now under consideration and what was meant by mileage, had examined Webster’s Dictionary, he would have found.it defined as follows:

“An allowance for traveling expenses at a certain per cent, per mile.”

There cannot be the slightest doubt as to what every voter understood, the constitutional provision to mean. The Constitution expressly provided for paying the members their traveling expenses and, if not directly at least by implication, prohibited the payment to them of any other expenses. The statute under consideration is a plain violation of the Constitution. Expenses incurred in conducting the business of the Legislature are entirely distinct from the personal expenses of the individual members.

Quoted words in capital letters do not indicate that the original was so printed.

The petition for a peremptory writ of mandamus should be denied.