Hall v. Blan

• Decision Date: 27 April 1933
• Docket Number: 3 Div. 48.
• Citation: 227 Ala. 64,148 So. 601
• Parties: HALL v. BLAN, State Treasurer.
• Court: Alabama Supreme Court

148 So. 601

227 Ala. 64

HALL v. BLAN, State Treasurer.

3 Div. 48.

Supreme Court of Alabama

April 27, 1933

Rehearing Denied June 9, 1933.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill by Jewell C. Hall against S. H. Blan, as State Treasurer, for an injunction. From a decree granting a preliminary writ of injunction but denying the full measure of relief prayed, and from a later decree dissolving or discharging the injunction as issued, complainant appeals.

Decree granting the injunction affirmed to the extent that it denied further injunctive relief, and decree discharging the injunction affirmed in part and reversed in part and cause remanded; the temporary injunction being reinstated to the extent indicated in the opinion.

Horace C. Wilkinson, of Birmingham, for appellant.

Thos E. Knight, Jr., Atty. Gen., and John H. Peach, Legal Advisor to the Governor, of Sheffield, for appellee.

BOULDIN Justice.

The bill was filed by Jewell C. Hall, as a taxpayer and teacher of a public school in this state, against S. H. Blan, as state treasurer of Alabama, seeking certain relief by injunction touching the disbursement of the public funds in the state treasury.

Filed in the circuit court of Montgomery county, in equity, the bill was presented to Honorable Roger Snyder, a circuit judge of Jefferson county, for a preliminary writ of injunction. After a hearing the writ was granted. On motion the injunction was promptly dissolved or discharged by Honorable Leon McCord, judge of the circuit court of Montgomery.

Complainant appeals from both decrees: From the decree of Judge Snyder for denial of the full measure of relief prayed, and from the decree of Judge McCord for discharging the injunction as issued.

For purposes of clarity and exactness, rather than the usual order of treating questions raised on appeal, we consider the several matters wherein the treasurer was enjoined in numerical order as disclosed by the writ of injunction issued by Judge Snyder.

By such writ, the state treasurer of Alabama was enjoined and restrained from: "(1) Paying any member of the Legislature of Alabama more than four dollars per day and mileage for attendance on the special or extraordinary session of the Legislature of Alabama that convened on January 31st, 1933."

This challenges the constitutionality of the Act approved January 28, 1927 (Gen. Acts 1927, p. 26), purporting to give each member of the Legislature an allowance, not exceeding $4 per day, for "reasonable expenses incurred by him because of and while in attendance upon the sessions of the Legislature." We treat this as intended to cover personal expenses incurred in the performance of legislative duties, among which expenses are enumerated "stenographic work, telephone and telegraph service clerk hire, stamps and like expenses."

Section 49 of the Constitution of Alabama 1901, reads: "The pay of the members of the legislature shall be four dollars per day, and ten cents per mile in going to and returning from the seat of government, to be computed by the nearest usual route traveled." This section first appeared as section 6, article 4, of the Constitution of 1875.

Reviewing the history of this constitutional provision, we note that long before it came into the Constitution, the statutes fixed what legislators should receive on a per diem and mileage basis. By the Code of 1852, § 43, the same per diem and mileage were prescribed as in the present Constitution.

This statute was construed in Ex parte Pickett, 24 Ala. 91, 95. In opinion by Chief Justice Chilton, this court said: "* * * The per diem compensation was intended as a remuneration for the services of the members, as well as to provide for their expenses during the period they were required to be absent from their homes in attending to the duties of legislation, as those duties are usually and ordinarily performed."

By an Act of February 19, 1867 (Acts 1866-1867, p. 635), the per diem was made $6, and mileage 40 cents. Revised Code, § 49.

Thus matters stood when the Constitutional Convention of 1875 convened. Code of 1876, § 43.

In readopting and writing into the Constitution the same per diem and mileage basis fixed by statute prior to 1867, these terms are presumed to have been employed in the same sense given them by judicial construction in Ex parte Pickett, supra.

Again, the Constitution fixes the compensation or allowance of no other public official.

To relieve legislators of the responsibility of dealing with a matter in which they had a direct personal interest, the criticism, as well as the temptation, seems an obvious reason for dealing with the entire subject in the Constitution itself. This is in keeping with section 82 of the Constitution, declaring that a legislator having a personal or private interest in any measure shall recuse himself and not vote thereon.

Again, the rule that the inclusion of one item excludes others of the same class, is a well-recognized one in construing documents generally.

Obviously the mileage allowance was aimed to cover traveling expenses incident to service in the Legislature.

At the Session of 1878-79 (Acts 1878-79, p. 52), the Legislature made the statute conform to the Constitution of 1875, and so has every Code since then. Code of 1923, § 1521 (914) (2226) (43).

For more than half a century, we think it can be safely said, this section of the Constitution has been generally construed as fixing and withdrawing from legislative power, the matter of personal compensation and expense allowances to legislators while in attendance at legislative sessions. Such has been the widely prevailing construction of similar constitutional provisions in other states. Jones v. Hoss, Secretary of State, 132 Or. 175, 285 P. 205; State ex rel. Banker, State Representative, v. Clausen, State Auditor, 142 Wash. 450, 253 P. 805; Dixon v. Shaw, State Auditor, 122 Okl. 211, 253 P. 500, 50 A. L. R. 1232; State ex rel. Griffith, Attorney General v. Turner, State Auditor, 117 Kan. 755, 233 P. 510; Peay v. Nolan, Treasurer, 157 Tenn. 222, 7 S.W.2d 815, 60 A. L. R. 408; Peay v. Graham, Comptroller, 162 Tenn. 153, 35 S.W.2d 568; Ashton v. Ferguson, State Treasurer, 164 Ark. 254, 261 S.W. 624; State ex rel. Fox v. Raine, Auditor, 49 Ohio St. 580, 31 N.E. 741; Fergus v. Russel, 270 Ill. 304, 110 N.E. 130, Ann. Cas. 1916B, 1120; Terrell, Comptroller, v. Middleton, 108 Tex. 14, 191 S.W. 1138, 193 S.W. 139; Leckenby, State Auditor v. Post Printing & Publishing Co., 65 Colo. 443, 176 P. 490; In re Advisory Opinion to Governor, 90 Fla. 708, 107 So. 366. There is a distinction, under our Constitution, between expenses of the Legislature, controlled by the legislative body, and expenses incurred by the member on his own account and at his discretion within a maximum limit. For example, clerk hire is within the provisions of section 67, authorizing necessary employees; but their number, duties, and compensation are to be fixed by law.

We are therefore impelled to declare the act of 1927, supra, and the amendatory act of 1932 reducing such expense allowance to $3 per day (Acts Extra Session 1932, p. 48) to be unconstitutional, null, and void.

That the constitutional sums may be inadequate, under present conditions, is not for the courts to decide.

It follows that the bill has equity in this regard, and the temporary injunction on that phase of the bill was properly issued, and, as reinstated by order of Chief Justice Anderson pending the appeal, will continue in force.

Second. The writ of injunction following the decretal order of Judge Snyder further enjoined the treasurer from: "(2) Paying or permitting to be paid out of the public school funds of the State of Alabama accruing for the support and maintenance of the public schools of Alabama for the tax year beginning October 1st, 1932, or the appropriation from the Alabama special educational trust fund for the year beginning October 1st, 1932, any sum, either by way of interest or principal, on any of the following warrants" (warrants here listed in the writ) "and from paying any part of said public school funds accruing for the support and maintenance of the public schools for the tax year beginning October 1, 1932, or the appropriation from the Alabama special educational trust fund for the year beginning October 1st, 1932, other than for the support and maintenance of the public schools of the State of Alabama."

The warrants here involved are of three classes: First, a long list of warrants drawn on the "Public School Fund," otherwise known as "General Educational Fund," consisting of the proceeds of the three-mill tax specially allocated to public schools by section 260 of the Constitution, other minor items, and special appropriations to such general school fund from the general revenues of the state. All the warrants in this first list were drawn in favor of the several county boards of education on account of their respective apportionments of such fund under section 256 of the Constitution and statutes making it the duty of the auditor to certify to the state superintendent of education the total available funds at the beginning of each fiscal year, and the duty of the superintendent to make such apportionment and certify same to the county boards, who, in turn, enter into contracts with teachers on the basis of such public school income.

Such warrants were drawn, it appears, during the months of December, 1930, January, February, and March, 1931, for payment from the school funds of the fiscal year, October 1, 1930, to September 30, 1931.

Funds not being in hand to pay these warrants, resort was had to a device of long standing known as "Certificated Warrants," defined by the state...