Dixon v. Shaw
| Decision Date | 01 February 1927 |
| Docket Number | 18097. |
| Citation | 253 P. 500,122 Okla. 211,1927 OK 24 |
| Parties | DIXON et al. v. SHAW, State Auditor. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 1, 1927.
Syllabus by the Court.
The biennial sessions of the Legislature of Oklahoma are required to be held at the seat of government. Section 26, art. 5 Constitution. Section 21, art. 5, of the Constitution provides:
"Members of the Legislature shall receive six dollars per diem for their services during the session of the Legislature, and ten cents per mile for every mile of necessary travel in going to and returning from the place of meeting of the Legislature, on the most usual route, and shall receive no other compensation: Provided, that members of the Legislature, except during the first session thereof held under this Constitution, shall receive only two dollars per diem for their services after sixty days of such session have elapsed."
This section is a grant and an inhibition. The mileage and per diem constitute the granted compensation. Any other allowance to the members out of public funds appropriated, for use in payment of hotel room rent and meals while at the capital attending the sessions of the Legislature, is purely personal to the members, is compensation other than that provided, and is inhibited.
Original proceeding by J. W. Dixon and others, members of the House of Representatives, for mandamus to be directed to A. S. J Shaw, State Auditor. Writ denied.
D. A Stovall, of Hugo, E. P. Hill, of Ardmore, Tom Kight, of Claremore, Chas. A. Moon, of Muskogee, Paul Sullivan, of Duncan, Claude Briggs, of Wilburton, J. A. Watson, of Bristow, A. L. Battenfield, of Pryor, and C. W. King and Leon S. Hirsh, both of Oklahoma City (W. A. Ledbetter, of Oklahoma City, of counsel), for plaintiffs.
Edwin Dabney, Atty. Gen., and J. Berry King, Asst. Atty. Gen., for defendant.
January 21, 1927, this court sustained a motion filed by the plaintiffs herein, praying it to exercise its original jurisdiction under section 2, art. 7, of the Constitution, and that it permit to be filed, and that the court entertain their petition for a peremptory writ of mandamus. Thereupon the petition was filed. Its allegations are made by J. W. Dixon and others, about 60 members of the House of Representatives of the Eleventh Legislature of the state of Oklahoma, now in regular biennial session (section 27, art. 5, of the Constitution), as plaintiffs. The writ is sought against A. S. J. Shaw as state auditor, defendant, ordering and commanding him to allow and pay certain claims. The claims are receipted bills for expenses incurred by plaintiffs in payment of hotel room rent, and for meals. They have been duly filed with the state auditor, and are in fact for the living costs of plaintiffs at the seat of government of the state of Oklahoma while plaintiffs are serving as members of the Legislature. Section 26, art. 5, Constitution. The petition discloses that the said claims were and are duly approved by the auditor of the House of Representatives, and that by House resolution No. 2 the house auditor was directed to approve such claims of the members for such character of expenses as plaintiffs pleaded, not exceeding $4 per day. The claims pleaded as having been presented to the defendant are within the $4 limit. By Senate Bill No. 8, Session Acts 1927, there was made available by appropriation a sufficient sum of money, as is recited therein: "To pay the mileage and per diem of the members of the House of Representatives of the Eleventh Legislature and the salaries of the officers and employees of the House of Representatives, and such contingent expenses as may be ordered therefrom, including the preparation and publication of the journals and calendars of House of Representatives." Senate Bill No. 8, Session Acts 1927.
Plaintiffs pleaded that, notwithstanding said claims have been duly verified, approved, and filed in legal form, the defendant, Shaw, as state auditor of the state of Oklahoma, refuses to recognize, audit, and honor the same, on the alleged ground that there is no legal authority granted him to pay same under the said appropriation (said Senate Bill No. 8), and, further, on the alleged ground that such payment would be in violation of the Constitution of the state of Oklahoma.
The response filed by the defendant raises no disputed questions of fact. The materially pleaded part of the response is that the Constitution of the state fixes the compensation of members of the Legislature, and that any attempted payment of the living expenses of the members while serving at the capital is violative thereof.
The court has received the benefit of oral argument from counsel representing the respective parties, and has before it the briefs and authorities on which each rely. It is made plain to the court in both that the plaintiffs, as members of the House of Representatives of the Eleventh Legislature, demand a decision from this court as to whether the Legislature can exercise that same degree of freedom in the matter of providing necessary expenses inuring to the benefit of its own members as it exercises in providing for payment of the expenses incurred by executive, judicial, and administrative officials and employees of the state. Argumentative thereon, reference is made to the appropriations by each biennial session of the Legislature for expenses of the other mentioned departments of state government.
This court can and will discuss this position of the plaintiffs only by calling their attention to the fact that it cannot go beyond the issues raised in the instant action, and its duty at this time is to announce the law on the question here and now present. It cannot, under any rule of law mentioned or to which reference is made, determine these issues by what the Legislature has done in the past as to appropriating money for specific purposes for the governmental functionaries mentioned, or by what the Legislature may see fit to do at its present session, or in the future. The court must of a necessity born of rules of law no less binding on it than the law is binding on the plaintiffs as to the questions here involved, determine the law on the controversy here at hand, and not undertake to pass upon an issue not raised. We leave their suggested issues, if issues they ever come to be, for determination when they arise, and are presented. We deem it proper to say, however, in passing, that the plaintiffs do not point out, and we are unable to find by an examination, a constitutional provision or provisions governing the other officers and their contingencies even similar to the provision of the Constitution that is now before us for construction. But the constitutional provisions as to such officers, largely, if not entirely, leave not only the compensation of the heads of the departments to which reference is made, but their subordinates, and the method and manner and efficiency of the performance of their duties, dependent upon an allowance of public funds by the Legislature, within its discretion as the spokesman for and on behalf of the people to be served. Governmental ends under our political system, and the method and expenditures incidental to the proper reaching thereof, are placed in the hands of the sovereign Legislature. It represents the will of the people in a degree no less conclusive than a constitutional convention, in all matters not either expressly or by clear implication prohibited by the basic law of the state. No one can call such body, or the members thereof, to account for its or their expenditure of public funds, or other matters brought within its control, save and except the people in their sovereign capacity, unless the power of the courts can be invoked to restrain and prevent the completion of a purpose expressed by such body in violation of the basic law of the state.
What we have just said brings us to the first proposition announced by the plaintiffs, to the effect that the Legislature is sovereign, and has no limitations as to expenditures, either for its own members, or for other departments of state government, save and except where the Constitution of the state or nation has seen fit to place an inhibition. This is so well recognized that it has become all but axiomatic. This court in many cases has clearly enunciated this rule, following both the logic and the reason of all the courts of this nation, both state and federal. Cooley on Constitutional Limitations (6th Ed. 1890) c. 7, §§ 4, 5, p. 201, in part, says:
"There is nothing more easy than to imagine a thousand tyrannical things which the Legislature may do, if its members forget all their duties, disregard * * * the obligations they owe to their constituents, and recklessly determine to trample upon right and justice." Sharpless v. Philadelphia, 21 Pa. 147, 59 Am. Dec. 759.
On this proposition contended for by the plaintiffs, this court said in a recent case:
"The sovereign speaks through its legislative body, and the legislative body determines the policy of the sovereign which...
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