Ashton v. Ferguson

• Decision Date: 12 May 1924
• Docket Number: 368
• Parties: ASHTON v. FERGUSON
• Court: Arkansas Supreme Court

261 S.W. 624

164 Ark. 254

ASHTON v. FERGUSON

No. 368

Supreme Court of Arkansas

May 12, 1924

Appeal from Pulaski Chancery Court; E. B. Downie, special chancellor; reversed.

Decree reversed.

J C. Marshall, for appellants.

The resolutions must be declared void because the payment to the members of anything beyond the stated salary of $ 3 per day and mileage is prohibited by the Constitution, Amentment No 8 thereof, which concludes with these words: "The terms of all members of the General Assembly shall begin on the day of their election, and they shall receive no compensation perquisites or allowance whatever, except as herein provided." The word "allowance" has been given a construction by various courts which would exclude any allowance even of official expenses in addition to salary and mileage of members, and the word "perquisites" as applied to members of the Legislature, who receive no fees could, under the law, mean only that they are to receive nothing even in the way of legislative expense, beyond their per diem and mileage. 110 N. E. (Ill.) 130; Id. 884, 890; 50 A. R. 705; 98 N.Y. 585.

Even if our Constitution did not prohibit expenses of legislators, still none could be allowed unless there was a statute authorizing it. Here there is none, only the resolutions of the House and Senate. 1 Dillon on Municipal Corporations, 233; 68 L. R. A. 264. Certainly the House and Senate may provide out of its contingent fund for the expenses of each as a body, such as paper, ink, stamps, etc., art. 19, § 15, Const., but that is a very different proposition from an allowance to each member of a large sum in cash out of the contingent fund, to be spent as he pleases. C. & M. Digest, § 4959, providing that each house shall control its own expenses, etc., refers to the expense of each house as a body, and is no authority for the allowance of cash to its individual members. There is no appropriation for such an expenditure as that here attempted. The only appropriation made is that for per diem, mileage and contingent expenses, which refers only to the expenses of the body as such. Moreover, if this appropriation were made to be used as is sought to be done here, it would be for a private purpose, and void. Const., art. 16, § 12, and art. 5, § 29; 1 Cooley, Constitutional Lim., 181, 184, 185; 54 L. R. A. 242, 107 Fed. (C. C. A.) 827. This allowance would be void because it is an increase by them of their salaries before their term expires. 110 N.E. 141; Const., art. 5, § 16, and art. 19, § 11. The amount voted and allowed, more than three times the salary, is a disguise and a subterfuge on its face. The court must take notice of the fact that, if the people limit the members to $ 3 per day, an allowance of over three times that amount, under the guise of legislative expenses, must be a pretense, and nothing else. The claim that the court, if it looks behind this proposed allowance, would be interfering with a coordinate department of the government, needs no answer. This court will strike down an unconstitutional act of any body or officer, whenever its unconstitutionality is made to appear. 141 Ark. 140; 76 Ark. 197, 210; 117 Ark. 352; 187 S.W. 367, 372.

J. S. Utley, Attorney General; John L. Carter, Wm. T. Hammock, Darden Moose and J. S. Abercrombie, Assistants, for appellees; X. O. Pindall and Neill Bohlinger, of counsel.

The power to determine the propriety of the payment in question is not a judicial, but a political, question. Whether the action complained of is wise or not cannot be inquired into by the courts. 72 Ark. 195; 94 Ark. 27; 112 Ark. 437; 114 Ark. 486. As distinguishing between legislative and judicial matters, and to show how jealously the prerogatives of the legislative branch of the government are protected against judicial invasion, see 88 Ark. 211; 89 Ark. 428; 25 Ark. 574; 54 Ark. 101; 97 Ark. 473; 103 Ark. 127; Id. 48; 109 Ark. 479; 141 Ark. 247; 147 Ark. 160. See also, Cooley on Constitutional Limitations, 7th edition, 187-196.

The power to function cannot be properly exercised unless each house is left free to determine what are its necessary expenses. It implies the power to use such means as are reasonably necessary to enable the body to function. (U. S.) 4 Wheat. 418-21. On the proposition that this is a political and legislative question, rather than judicial, see also 142 Tenn. 527; 201 Pa. 544, 1 L. R. A. (N. S.) 409. It appears that appellants would make it a subject of judicial inquiry as to whether the amount appropriated was proper. If the judiciary should undertake such an inquiry, where would it lead to, and where would it end? We think the correct principle is stated in the case of Sharpless v. Philadelphia, 59 Am. Dec. 675. See also 187 S.W. 367.

OPINION

MCCULLOCH, C. J.

An extraordinary session of the General Assembly was convened on March 24, 1924, by proclamation of the Chief Executive, and the session lasted twelve days. On the fourth day of the session the House of Representatives adopted a resolution directing the clerk to "issue to each member of this House of Representatives a voucher with which to pay expenses of stamps, telephone, telegraph and other necessary expenses, the sum of $ 100, and the Auditor of State is hereby directed and empowered to issue appropriate warrants covering said vouchers so issued, and the Treasurer of this State is hereby authorized to honor said warrants." On the last day of the session the Senate adopted a resolution directing the secretary to "issue warrants to each Senator for one hundred dollars, covering stamps, telegrams and other incidental expenses incurred while attending said Legislature."

Appellants are citizens and taxpayers of the State, and they instituted this action in the chancery court of Pulaski County against the Auditor and Treasurer to restrain them from issuing and paying warrants under the foregoing resolution. It is contended that each of the resolutions referred to is unconstitutional and void.

An amendment to the Constitution, adopted in the year 1913 and now in force, reads as follows:

"Article 5, § 17, amended. Each member of the General Assembly shall receive six dollars per day for his services during the first sixty days of any regular session of the General Assembly, and, if any regular session shall be extended, such members shall serve without further per diem. Each member of the General Assembly shall also receive ten cents per mile for each mile traveled in going to and returning from the seat of of government, over the most direct and practicable route. When convened in extraordinary session by the Governor, they shall each receive three dollars per day for their services during the first fifteen days, and, if such extraordinary session shall extend beyond fifteen days they shall receive no further per diem. They shall be entitled to the same mileage for any extraordinary session as herein provided for regular sessions. The terms of all members of the General Assembly shall begin on the day of their election, and they shall receive no compensation, perquisite or allowance whatever, except as herein...