Gallarno v. Long

• Citation: 243 N.W. 719,214 Iowa 805
• Decision Date: 24 June 1932
• Docket Number: No. 41456.,41456.
• Parties: GALLARNO v. LONG, STATE AUDITOR, ET AL. (PRITCHARD, INTERVENER).
• Court: Iowa Supreme Court

214 Iowa 805

243 N.W. 719

GALLARNO

v.LONG, STATE AUDITOR, ET AL. (PRITCHARD, INTERVENER).

No. 41456.

Supreme Court of Iowa.

June 24, 1932.

Appeal from District Court, Polk County; John J. Halloran, Judge.

So far as material on this appeal, this was a proceeding by the plaintiff-appellant and the intervener-appellant, as taxpayers, to enjoin the appellees, auditor and treasurer of state, from paying to the Lieutenant Governor of Iowa and to the members of the Legislature in the Forty-Fourth General Assembly of Iowa certain alleged expense moneys attempted to be authorized by chapter 1, Acts of the Forty-Third General Assembly. The district court denied the injunction, and the plaintiff and intervener appeal.

Reversed.Clark, Byers, Hutchinson & Garber, of Des Moines, for appellant Gallarno.

Fred H. Free, of Sioux City, for appellant Pritchard.

John Fletcher, Atty. Gen., and Earl F. Wisdom, Asst. Atty. Gen., and McNett, Kuhns & Brown, of Ottumwa, for appellees.

KINDIG, J.

On April 3, 1929, the General Assembly of Iowa passed and approved Chapter 1, Acts of the Forty-Third General Assembly. Section 1 of this act contains the following provisions: “Each member of the general assembly and the lieutenant governor shall be paid his actual necessary expenses incurred while in attendance at a session of the legislature, which shall in no case exceed five hundred dollars ($500.00) for any regular session. Sworn itemized claims therefor shall be filed with the state board of audit and the provisions of chapter twenty-five (25) of the code shall be applicable thereto. The members of the forty-third general assembly, including the lieutenant governor, shall be entitled to the benefits thereof.”

[1] Those members of the Forty-Third General Assembly who filed claims for expenses under the above legislation have been paid, and the others who did not thus file such claims cannot now obtain the alleged expense money for that session because more than six months have elapsed since “its accrual.” Under section 393 of the 1931 Code: “No claim shall be audited by the board [of audit] when such claim is presented after the lapse of six months from its accrual.”

Although the plaintiff-appellant, George Gallarno, and the intervener-appellant, J. P. Pritchard, sought to enjoin the defendants-appellees, James W. Long, auditor of state, and Raymond E. Johnson, treasurer of state, from paying to the Lieutenant Governor and the members of the Legislature in the Forty-Third General Assembly the claims by some of them filed for the alleged expense money, the injunctive relief, because of the aforesaid payment to some and the statutory bar as against others, will not be granted, for this particular question has become moot. Nevertheless, the Lieutenant Governor and most members of the Legislature in the Forty-Fourth General Assembly likewise, to cover the so-called personal expenses of such officials, respectively, filed claims for personal expenditures under the provisions of chapter 1, Acts of the Forty-Third General Assembly, above set forth. Some members of the House and Senate, however, did not file claims under this legislation. Such claims which have been thus filed in the manner and way aforesaid were duly audited and by the auditors allowed. Moneys have been appropriated for the payment of the audited claims. All preliminary steps have been taken for the payment of the claims allowed to the Lieutenant Governor and the members of the Forty-Fourth General Assembly who filed them. Unless, then, the appellee, the auditor of state, is enjoined, he will duly issue a state warrant to each claimant for the claim allowed him, and, upon presentation, the appellee treasurer, unless he is restrained, will pay the same from the state funds appropriated therefor. Consequently, this action was instituted June 19, 1931, in the Polk county district court by the appellants, as taxpayers of Iowa, to enjoin the auditor of state from issuing the aforesaid warrants and the treasurer of state from paying the same.

The basis for the injunction relied upon by the appellants is the unconstitutionality of chapter 1, Acts of the Forty-Third General Assembly. This unconstitutionality arises, the appellants declare, because chapter 1, Acts of the Forty-Third General Assembly, conflicts with, and is contrary to, section 25, article 3, and section 15, article 4, of the Iowa Constitution.

After a hearing in the district court, that tribunal found the legislation aforesaid constitutional, and, on December 11, 1931, entered a judgment and decree denying the injunction. From this ruling of the district court the appellants appealed.

Several questions are argued, but it is necessary to consider but two of them for a final determination of this case. These propositions are: First, Under the Iowa Constitution is the alleged personal expense money, allowed under chapter 1, Acts of the Forty-Third General Assembly, expense of the proposed recipients or compensation to them? If, as hereinafter found, such allowance under the legislation is in fact compensation, then, second, may compensation be granted the Lieutenant Governor and members of the Legislature under the Constitution in the manner and way outlined by chapter 1, Acts of the Forty-Third General Assembly? By thus defining the propositions involved, it is not intended to indicate or suggest that chapter 1, Acts of the Forty-Third General Assembly, would be constitutional if the moneys therein allowed the Lieutenant Governor and members of the Legislature were for personal expenses as distinguished from compensation. That question is not considered in this discussion. Under the propositions thus outlined, it is first convenient to determine whether or not the allowance made under chapter 1, Acts of the Forty-Third General Assembly, is compensation or a mere personal expense under the Constitution.

Section 25, article 3, of the Iowa Constitution, declares: “Each member of the first General Assembly under this Constitution, shall receive three dollars per diem while in session; and the further sum of three dollars for every twenty miles traveled, in going to and returning from the place where such session is held, by the nearest traveled route; after which they shall receive such compensation as shall be fixed by law; but no General Assembly shall have power to increase the compensation of its own members. And when convened in extra session they shall receive the same mileage and per diem compensation, as fixed by law for the regular session, and none other.”

Moreover, section 15, article 4, of the Iowa Constitution, contains the following declaration: “* * * The Lieutenant Governor, while acting as Governor, shall receive the same pay as provided for Governor; and while presiding in the Senate, shall receive as compensation therefor, the same mileage and double the per diem pay provided for a Senator, and none other.”

In response to the alleged privilege afforded by chapter 1, Acts of the Forty-Third General Assembly, the Lieutenant Governor and certain members of the Forty-Fourth General Assembly filed with the auditor of state various and divers claims for board, room, taxicab hire, repair of automobiles, expenses incident to attending funerals, the costs of entertaining constituents, garage rent, mileage, drayage for moving household goods, and miscellaneous and estimated items. At that session of the Legislature, the Lieutenant Governor and each member of the Legislature, in addition to the allowance under consideration, had received: First, the mileage provided by section 14 of the 1931 Code, to wit, 5 cents per mile, by the nearest traveled route; and, second, full compensation, as provided by section 14 of the Code, supra; that is to say, $2,000 for the Lieutenant Governor and $1,000 for each member of the Legislature. So, as above indicated, the allowance contemplated by chapter 1, Acts of the Forty-Third General Assembly, is in addition to the mileage and salary allowed by section 14 of the Code.

Within the purview of the aforesaid constitutional provisions, then, is the allowance contemplated by chapter 1, Acts of the Forty-Third General Assembly, compensation or expense? It is argued by appellees that the allowance is expense, while, on the other hand, it is contended by the appellant that the same constitutes compensation under the Constitution.

From this point, the theories of the arguments of the appellants and appellees become widely divergent. Appellees maintain that, because the allowance contemplated by chapter 1, Acts of the Forty-Third General Assembly, is not fixed, but determined by the actual personal expenditure of the Lieutenant Governor and each member of the General Assembly, it necessarily is a personal expense under the Constitution, as distinguished from compensation. Because such expenditure is personal to the Lieutenant Governor and each member of the General Assembly, the appellees insist that it does not rise to the degree or dignity of a compensation, but, rather, the same constitutes a preliminary prerequisite which permits the recipient to receive and enjoy the actual compensation granted by the Constitution and the aforesaid legislation thereunder.

On the other hand, the appellants contend that the allowance under consideration necessarily and logically must be and is compensation under the Constitution, and the legislation in question, because the same takes the place of the compensation enjoyed before this particular act was passed, and therefore in fact amounts to an additional compensation. Continuing their argument at this juncture, the appellants declare that the expenses of the Lieutenant Governor and the members of the Legislature are necessarily divided into two kinds. They are: First, a legislative expense; and, second, a personal expense. Therefore the appellants conclude that the Legislature may properly allow a legislative expense in addition to...