Earhart v. Frohmiller

• Decision Date: 14 March 1947
• Docket Number: 4979
• Citation: 65 Ariz. 221,178 P.2d 436
• Parties: EARHART et al. v. FROHMILLER, State Auditor, et al
• Court: Arizona Supreme Court

178 P.2d 436

65 Ariz. 221

EARHART et al. v. FROHMILLER, State Auditor, et al

No. 4979

Supreme Court of Arizona

March 14, 1947

Original proceeding in mandamus by R.R. Earhart, as member of the 18th State Legislature, State of Arizona, from Santa Cruz County, State of Arizona, and E. P. Schaffer, attache of the 18th State Legislature, against Ana Frohmiller, State Auditor, and Mitt Simms, State Treasurer, to compel the State Auditor to allow and the State Treasurer to pay claims for subsistence and lodging expenses. On motion to quash alternative writ of mandamus and dismiss the proceeding.

Writ denied; alternative writ of mandamus quashed.

John L Sullivan, Atty. Gen., John W. Rood and Perry M. Ling, Asst Atty. Gen., for petitioners.

Charles L. Strouss, of Phoenix, for respondents.

Stanford C. J., and LaPrade and Udall, JJ., concur.

OPINION

PER CURIAM

Petitioners seek a writ of mandamus compelling the State Auditor to allow and the State Treasurer to pay claims for subsistence and lodging expenses in accordance with the provisions of Chap. 16 (H.B. 103). This bill was enacted by the Eighteenth Legislature on February 28, 1947, over the vote of the Governor, with an emergency clause attached. That part of the bill necessary to this opinion reads as follows: "Section 1. Reimbursement of members of legislature. Any member or employee and officer of the legislature, while absent from his usual place of residence in the service of the state during a session of the legislature, shall be reimbursed for his actual and necessary expenditures for subsistence and lodging, not to exceed the sum of ten dollars per day. All claims for reimbursement as provided in this Act shall be filed as other claims against the state, and shall be accompanied by receipts or vouchers evidencing such expenditures * * *." (Emphasis supplied.)

Due to the nature of the questions here raised this Court assumed original jurisdiction and issued an Alternative Writ of Mandamus which the respondents moved to quash, asking that the action be dismissed. Because of its public importance, the Court advanced this matter on its calendar.

Respondents' objections are directed solely to the constitutionality of allowing subsistence and lodging expenses to members of the Legislature and their employees who are absent from their usual place of residence while serving the State during legislative sessions.

Undoubtedly the Act provides for "personal expenses" as distinguished from "legislative expenses", and this under the theory, no doubt, that the State of Arizona is unduly enriched by not reimbursing the Legislators for their personal expenses during their period of service when other public officers are so reimbursed.

We must necessarily determine in this case 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.

There are many decisions of other states holding invalid acts which provide, in one form or another, for personal expenses of members of the legislature. Peck v. State, 63 Idaho 375, 120 P.2d 820; State ex rel. Boyd v. Tracy, 128 Ohio St. 242, 190 N.E. 463; Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 815, 60 A.L.R. 408; Gallarno v. Long, 214 Iowa 805, 243 N.W. 719; Dixon v. Shaw, 122 Okl. 211, 253 P. 500, 50 A.L.R. 1232; Fergus v. Russel, 270 Ill. 626, 110 N.E. 887; Godfrey v. Hunter, 176 S.C. 442, 180 S.E. 468; Advisory Opinion to Governor, 156 Fla. 48, 22 So.2d 398; Terrel v. King, 118 Tex. 237, 14 S.W.2d 786; Ashton v. Ferguson, 164 Ark. 254, 261 S.W. 624; Jones v. Hess, 132 Or. 175, 285 P. 205; State ex rel. v. Turner, 117 Kan. 755, 233 P. 510. Some of these cases can be distinguished, being based upon different constitutional language; others, it must be conceded, are directly in conflict with the reasoning contained herein. Divided opinions have characterized the reported cases on this question demonstrating that few courts have been free from doubt as to the correct interpretation to place upon such acts.

Some of the courts which held such acts invalid have done so because the state constitutions in question provided no express authorization for such legislation.

We believe the rule of construction which requires the finding of express authorization is inappropriate when applied to the Constitution of the State of Arizona, and by the great weight of authority throughout the United States, it is not applicable to the construction of state constitutions generally. Art 2, Sec. 33 of the Arizona Constitution states that "The enumeration in this constitution of certain rights shall not be construed to deny others retained by the people". Unlike the Federal Constitution, state constitutions are not grants of power, but instead are limitations thereof. The generally accepted doctrine is that except for those things necessarily inhibited by the Federal or state constitution, the state legislature may pass any act, because the whole power not prohibited by the state and Federal constitutions is retained in the people and their elected representatives in the state. 12 C.J. Sec. 167, pp. 745-874; 16 C.J.S., Constitutional Law, § 70; State ex rel. Todd v. Yelle, 7 Wash.2d 443, 110 P.2d 162; Collins v. Riley, 24 Cal.2d 912, 152 P.2d 169.

The Constitution of Arizona is not, as is the Constitution of the United States, to be considered a grant of power or enabling act to the Legislature, but rather is a limitation upon the power of that body, and that "The Legislature is vested with the whole of the legislative power of the state, and may deal with any subject within the scope of civil government unless it is restrained by the provisions of the Constitution, and the presumption that the Legislature is acting within the Constitution holds good until it is made to appear in what particular it is violating constitutional limitations." Macmillan Co. v. Clarke, 184 Cal. 491, 194 P. 1030, 1032, 17 A.L.R. 288. "We do not look to the (state) Constitution to determine whether the Legislature is authorized to do an act, but only to see if it is prohibited." Fitts v. Superior Court of Los Angeles County, 6 Cal.2d 230, 57 P.2d 510, 512.

Neither is the rule of construction that expressio unius est exclusio alterius persuasive in this case. This rule is applied with greatest caution to "provisions of constitutions relating to the legislative branch of the government, as it cannot be made to restrict the plenary power of the legislature * * *." 16 C.J.S., Constitutional Law, § 21, p. 62. See, also, Atkinson, Kier Bros., Spicer Co. v. Industrial Commission of Arizona, 35 Ariz. 48, 274 P. 634; Home Acc. Ins. Co. v. Industrial Commission of Arizona, 34 Ariz. 201, 269 P. 501.

Our standard for judgment here is clear. We must find that the Act is clearly prohibited by either the Federal Constitution or the Constitution of Arizona in order to hold it invalid. And in looking to see whether it is clearly prohibited we are cognizant of the rule that all presumptions and intendments are in favor of the validity and constitutionality of legislative acts and such acts "will be given a construction consistent with validity if at all possible." Collins v. Riley, supra [48 N.M. 433, 152 P.2d 170]; Coggins v. Ely, 23 Ariz. 155, 202 P. 391; Loveland v. State, 53 Ariz. 131, 86 P.2d 942; Charleston Fed. Sav. & Loan Ass'n v. Alderson, 324 U.S. 182, 65 S.Ct. 624, 89 L.Ed. 857.

The principle point relied upon by the respondents is that granting to the legislators an allowance for subsistence and lodging constitutes an improper increase in their compensation under the terms of the Arizona Constitution, Art. 4, pt. 2, Sec. 1(2) thereof as amended by the initiative act of 1932, insofar as material reads as follows: "From and after the adoption of this amendment members of the legislature shall receive $ 8.00 per day * * * provided however, that they shall receive such compensation for a period not to exceed 60 days in any one regular session and for a period of not to exceed 20 days in any one special session. They shall also receive mileage one way by the shortest practical route at the rate of 20 cents per mile * * the compensation of * * * attaches or employees except the chief clerk or secretary of each branch shall not exceed $ 5.00 per day."

Respondents claim this Act also violates Art. 4, pt. 2, Sec. 17 of our Constitution which in prohibiting extra compensation states: "The legislature shall never grant any extra compensation to any public officer * * * servant * * * after the services shall have been rendered * * * nor shall the compensation of any public officer be increased or diminished during his term of office * * *."

These constitutional provisions are so interrelated that the claimed violations of each shall be considered together.

We do not believe these contentions of constitutional violation can be upheld. When the State repays the legislators and their employees for personal expenses, this does not constitute additional compensation but is merely a reimbursement for actual cash outlays necessarily incurred for subsistence while away from home and in the performance of duty.

In Olmsted & Gillelen v. Hesla, 24 Ariz. 546, 211 P 589 591, our Court stated: "In the Constitution compensation is employed to designate salary. Section 17, art. 4." Similarly the California Supreme Court has held that the word "compensation" ordinarily means pay for services rendered, and is sometimes held...