Gunter v. Beasley

• Decision Date: 09 April 1982
• Citation: 414 So.2d 41
• Parties: Annie Laurie GUNTER, as Treasurer of the State of Alabama, et al. v. Jere BEASLEY. 80-185.
• Court: Alabama Supreme Court

Page 41

414 So.2d 41

Annie Laurie GUNTER, as Treasurer of the State of Alabama, et al. v. Jere BEASLEY.

80-185.

Supreme Court of Alabama.

April 9, 1982.

Rehearing Denied May 21, 1982.

Charles A. Graddick, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for appellants.

Robert C. Black and Randall C. Morgan of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.

EMBRY, Justice.

Defendants below, the Treasurer, Comptroller, and Finance Director of the State of Alabama, appeal from a final judgment ordering payment by the State of $124,350, plus interest, to plaintiff, Jere Beasley. The trial court determined that monthly expense allowances totalling that amount were wrongfully withheld from Beasley during his eight-year tenure in office as Lieutenant Governor of Alabama, over defendants' arguments that the legislative resolutions which authorized the expense allowance were in violation of several provisions of the Alabama Constitution.

Beasley served two terms as Lieutenant Governor, from 18 January 1971, until 15 January 1979. Early during his first term in office, House Joint Resolution 223 (Acts of Alabama, 1971 Regular Session, Act No. 1196) was passed; it was introduced and passed as a resolution rather than as a bill to be entitled an act.

H. J. R. 223 provided, inter alia, for payment of the "reasonable expenses of the presiding officer of each House of the Legislature incurred in the performance of their duties" and "while on business of the State." Shortly thereafter, Senate Resolution 112 of the Regular Session of the 1971 Legislature, stating as its purpose the clarification of H. J. R. 223, was passed to provide for payment of the Lieutenant Governor's "actual and necessary expenses" in the form of an expense allowance, the amount of which was to be set by the Senate Ethics Committee. That allowance was to be paid "in addition to the monthly expenses now allowed to the Lieutenant Governor."

Subsequently, the Senate Ethics Committee set the expense allowance at a fixed sum of $1500 per month. The Comptroller initially authorized several payments in that amount to Beasley, but ceased such payments after receiving an advisory opinion from the Attorney General that the two resolutions authorizing the expense allowance were unconstitutional.

In September of 1979, approximately eight months after leaving office, Beasley brought this action seeking a judgment declaring that H. J. R. 223 and S. R. 112 of the 1971 Regular Session were valid and constitutional, and to compel defendants to pay him $1500 for each month during his terms in office during which the expense allowance was withheld, plus interests, costs, and attorney's fees. Following trial, in which the evidence was adduced ore tenus, the trial court granted the relief requested, with the exception of attorney's fees. The trial court also enjoined defendants from further withholding the $124,350 plus interest, the amount owed Beasley.

In this appeal, the State essentially reiterates the issues raised below. The validity of the two resolutions and Beasley's right to bring this action are questioned because of impediments allegedly found in numerous state constitutional and statutory provisions. Looking initially to the language of the resolutions challenged, the operative passage of H. J. R. 223 reads:

"BE IT RESOLVED BY THE LEGISLATURE OF ALABAMA, BOTH HOUSES THEREOF CONCURRING, That the staff of the Legislature is hereby increased by the addition of one secretary for the Legislative Committee on Public Accounts, one administrative assistant each and one additional secretary each for the respective presiding officers of each house whose salaries shall be set by the Clerk of the House and the Secretary of the Senate. The Clerk of the House of Representatives and the Secretary of the Senate are hereby instructed to pay out of funds appropriated to the use of the Legislature the reasonable expenses of the presiding officers of each House of the Legislature incurred in the performance of their duties. In addition to the above, the Clerk of the House and the Secretary of the Senate shall pay the reasonable expenses of the presiding officers incurred within or without the State while on business of the State and including the salaries and actual travel expenses of the individuals included in the above additions to the legislature's staff and such other office expenses, equipment and supplies reasonably necessary to the operation of the aforesaid offices."

The pertinent portion of S. R. 112 states:

"BE IT RESOLVED BY THE SENATE OF ALABAMA AS FOLLOWS:

"1. That the Secretary of the Senate is hereby directed to carry out the provisions of the aforesaid H. J. R. as directed by the Lieutenant Governor.

"2. That the term 'expenses' referred to in said H. J. R. shall include, but but [sic] not be limited to, all actual and necessary expenses incurred by the Lieutenant Governor's office which shall include all office supplies, stationery, postage and postal charges, telegrams, telephones and telephone service, equipment purchases and rentals, maintenance and repairs on equipment, travel, and other miscellaneous expenses incurred by the Lieutenant Governor related to the carrying out of the duties of his office, as directed by the Lieutenant Governor.

"3. That in addition to the monthly expense payment now allowed to the Lieutenant Governor, an additional sum shall be paid to the Lieutenant Governor each month in the form of an allowance for reasonable and necessary expenses incurred in the exercise of his official duties not otherwise provided for by law. The amount of said expense allowance shall be determined and set by the Senate Ethics Committee, which said Committee shall promptly advise the Secretary of the Senate. This monthly expense allowance shall be paid for only as long as the Lieutenant Governor maintains a residence in Montgomery and maintains a full time office in the State Capitol.

"4. This resolution shall in no way affect the validity of H. J. R. 223, but is intended to clarify certain portions thereof.

"5. All of the above mentioned sums are to be paid as directed in said H. J. R. from funds specified therein."

The State contends the monthly payments denominated as an allowance for expenses in fact represented an increase in Beasley's salary or compensation, in contravention of Sections 67, 118, and 281 and Amendment 92 of the Alabama Constitution. These sections variously provide that the compensation of public officers shall be fixed by law and shall not be increased or decreased during their terms in office.

A resolution is not a law but merely the form in which the Legislature expresses an opinion. The Legislature has no power to make laws by resolution. Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933). Furthermore, as previously mentioned, the resolutions in question were passed during Beasley's first term in office. Consequently, if the State is correct in its assertion that the monthly allowance represented increased compensation to Beasley, payments thereof pursuant to H. J. R. 223 and S. R. 112 would violate the Constitutional provisions cited by the State.

Our cynosure for this inquiry is Hart v. deGraffenried, 388 So.2d 1196 (Ala.1980), involving a legislative resolution increasing the per diem and monthly expense allowance of legislators during their terms in office, challenged as violative of, inter alia, Sections 281 and Amendment 92, for the same reasons assigned by the State here with respect to these provisions and Sections 67 and 118. As we commented in Hart :

"... This necessarily raises the question of whether any portion of the increased expense allowances represents compensation for services rendered as opposed to reimbursement for expenses incurred.

"....

"We are persuaded that under the applicable provisions of the Alabama Constitution the payment of legislative expense allowances has never been considered any part of the personal compensation awarded to Alabama legislators; rather, these expense allowances exist as a means of reimbursing legislators for expenditures incurred in being called away from home in service to the state and in carrying on their official responsibilities. On the basis of this conclusion, we hold that the enactment of S. J. R. 13 does not violate Section 281 or Amendment 92 by increasing a legislator's compensation during his term in office."

In reaching that conclusion, however, we quoted with approval from Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577 (1948):

"... that the allowance of reasonable expenses incurred in the discharge of official duties of an office is neither salary, compensation, nor emoluments of office within the purview of a constitutional prohibition against a change in compensation during the term." (Emphasis added.)

We then noted:

"... Plaintiffs in the present case, did not question the reasonableness of the increase in expenses; ...."

To the contrary, however, in the case sub judice, the State does vigorously contest the reasonableness of the expense allowance granted Beasley. With regard to the issue of reasonableness the final judgment of the trial court concluded as follows:

"The Court finds from the facts that the 'fixing' of $1500.00 per month as an expense allowance was proper and, in fact, was a reasonable amount as an expense allowance and specifically finds that no part of said amount constitutes compensation, but instead that all constitutes a reasonable amount for expense allowance."

The question of reasonableness is one of fact to be resolved by the trier of fact, in this case the trial court receiving the evidence ore tenus. Where the evidence is heard ore tenus, the court will not disturb factual findings of the trial court unless clearly erroneous or manifestly unjust. J. C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981).

The evidence presented by Beasley at trial tended to show that the...