Christopherson v. Reeves
| Decision Date | 27 October 1921 |
| Docket Number | 4981. |
| Parties | CHRISTOPHERSON v. REEVES, State Auditor (STATE, Intervener). |
| Court | South Dakota Supreme Court |
Petition for writ of mandamus by A. Christopherson against Jay Reeves as Auditor of the State of South Dakota, in which the State of South Dakota intervened. Petition granted.
An order having been made by the Supreme Court of the state of South Dakota finding that the regular judges thereof and all of the circuit judges in and for the several circuits of the state of South Dakota were, by reason of their interest in a similar question disqualified to sit in this proceeding, and the court, pursuant to the provisions of article 5, § 7 Constitution of the state of South Dakota, and chapter 343 of the Laws of South Dakota for the year of 1919, having appointed from the attorneys of record of said court ROBERT C. HAYES, of Deadwood, T. H. NULL, of Huron, GEORGE RICE, of Flandreau, A. H. ORVIS, of Yankton, and LEWIS W. BICKNELL, of Webster, to act as judges of the Supreme Court in place of the disqualified judges, and said persons having qualified by filing the oath of office required by law, and organized as a court, ROBERT C. HAYES, presiding, they proceeded to hear and determine this cause as the Supreme Court of the state of South Dakota.
Danforth & Barron and Bailey & Voorhees, all of Sioux Falls, for petitioner.
Byron S. Payne, Atty. Gen., and E. D. Roberts, Asst. Atty. Gen for respondent, and for the State.
The petitioner asks a writ of mandamus, directed to the respondent Reeves as State Auditor, commanding and directing 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 March, 1921; that at 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 is 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:
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?"
The 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.
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 word "pay," as used in the foregoing portion of the Constitution of South Dakota, means compensation. 6 Words and Phrases, First Series, 5243. The word "perquisite" is variously defined as follows:
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...
To continue reading
Request your trial