Ashton v. Ferguson

• Decision Date: 12 May 1924
• Docket Number: (No. 368.)
• Citation: 261 S.W. 624
• Parties: ASHTON et al. v. FERGUSON, State Treasurer, et al.
• Court: Arkansas Supreme Court

261 S.W. 624

ASHTON et al. v. FERGUSON, State Treasurer, et al.

(No. 368.)

Supreme Court of Arkansas.

May 12, 1924.

Appeal from Pulaski Chancery Court; E. B. Downie, Special Chancellor.

Suit by Jack W. Ashton, and others against Joe Ferguson, State Treasurer, and another. From a decree denying relief, plaintiffs appeal. Reversed.

J. C. Marshall, of Little Rock, for appellants.

J. S. Utley, Atty. Gen., Jno. L. Carter, Wm. T. Hammock, Darden Moose, and J. S. Abercrombie, Asst. Attys. Gen., and X. O. Pindall and Neill Bohlinger, both of Little Rock, for appellees.

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 12 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 resolutions. 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, § 16, 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 member 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 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 milage 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 provided."

The per diem and mileage of the senators and representatives were paid out of the funds regularly appropriated to cover the expenses of the session, and it is plain that the allowances attempted to be made in these resolutions were to be in addition to the mileage and per diem. The contention of counsel for appellants is that this is no more nor less than an attempt, in violation of the Constitution, to make an additional allowance to the senators and representatives; and, on the other hand, it is contended by counsel for appellees that this is not an allowance or perquisite or additional compensation within the meaning of the Constitution and is merely a provision by each of the houses of the General Assembly for the payment of the expenses of conducting the session.

There is a statute (Crawford & Moses' Digest § 4959) which provides, in substance, that each of the two houses of the General Assembly shall control its own contingent expenses, and that the same shall be certified by the presiding officer. This statute merely declares that which is an essential power of each of the houses of the General Assembly in order to perform its functions, and it should be said in advance of this discussion that if no more were involved than the exercise of...