Jones v. Hoss

• Decision Date: 18 February 1930
• Citation: 285 P. 205,132 Or. 175
• Parties: JONES v. HOSS, SECRETARY OF STATE, ET AL.
• Court: Oregon Supreme Court

285 P. 205

132 Or. 175

JONES v. HOSS, SECRETARY OF STATE, ET AL.

Supreme Court of Oregon, En Banc.

February 18, 1930

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Suit by W. A. Jones against Hal E. Hoss, Secretary of State, and another. Decree for plaintiff, and defendants appeal. Affirmed.

McBride and Rossman, JJ., dissenting.

W. Lair Thompson, of Portland (L. T. Harris, of Eugene, and I. H. Van Winkle, Atty. Gen., on the brief), for appellant.

Custer E. Ross, of Salem, for respondent.

BELT J.

This is a suit to enjoin the issuance and payment of certain warrants covering incidental expenses of members of the Legislature. After an appropriation by legislative act (chapter 207 General Laws of Oregon for 1929), providing for the payment of the general expenses of the Legislature, the following House Concurrent Resolution (Laws 1929, p. 809 No. 8) was passed:

"That the secretary of state is hereby authorized and directed to audit and allow, in the same manner as other claims against the appropriation made for the payment of the expenses incurred by the thirty-fifth legislative assembly of the state of Oregon, the sum of $5 per day during said legislative session to each member of said legislative assembly for the payment of his incidental expenses. Said payment for expenses shall be in addition to and shall be considered and held separate and distinct from the per diem allowance for services and mileage of such members provided by the constitution."

Plaintiff a resident and taxpayer of this state, seeks to restrain payment of such warrants chiefly upon the ground that it would be in violation of section 29, art. 4, of the Constitution of Oregon, which, so far as material herein provides:

" Compensation of Members. The members of the legislative assembly shall receive for their services a sum not exceeding three dollars a day, from the commencement of the session; but such pay shall not exceed in the aggregate one hundred and twenty dollars for per diem allowance for any one session. * * * They shall also receive the sum of three dollars for every twenty miles they shall travel in going to and returning from their place of meeting, on the most usual route. * * *"

The demurrer to the complaint in effect admits the allegation that such warrants "are not for the payment of officers, clerks, stenographers, stationery, postage, or other general and contingent expenses of said 35th regular legislative assembly, or any part thereof." We will assume, therefore, that payment of the personal incidental expenses of the members of the Legislature is involved.

After overruling the demurrer to the complaint, the trial court, upon refusal of defendants to plead further, entered a decree declaring the above resolution unconstitutional and void, and restrained defendants from paying warrants issued pursuant thereto. Hence this appeal.

The precise question is: Does the Constitution of this state expressly or impliedly prohibit the Legislature from appropriating money to pay the personal incidental expenses of its members? We look not to see whether such power is granted but rather whether it is prohibited. A state Constitution, unlike the federal, is a limitation, and not a grant of power. This principle is axiomatic under our constitutional system of government. If there be no limitation of power impliedly or specifically expressed, the Legislature, in the exercise of its sovereign right, may authorize such an appropriation, and courts will not interfere, regardless of their opinion as to the wisdom of such legislation. To do so would be a trespass upon the rights of a co-ordinate branch of the government.

If, however, the Constitution plainly interdicts this appropriation of funds, it is the duty of the court to declare the supremacy of such basic law and to enjoin payment of the warrants.

In construing a constitutional provision we seek to ascertain and give effect to the intent of the framers and of the people who adopted it. Words which have no well-established technical or legal signification are to be given their plain, natural, and ordinary meaning. A Constitution is dependent upon ratification by the people. Its language should, therefore, be considered in the sense most obvious to the common understanding of the people at the time of its adoption. It is no time to indulge in subtle or ingenious reasoning. The Constitution must be viewed in the light of the spirit of the times when it was enacted. 6 R. C. L. 51. What did those conservative pioneer citizens have in mind relative to the matter of compensating those who represented them in the Legislature? Did they visualize and provide against the changed conditions in this age, where the cost of living is so high? Or, was the compensation and mileage as expressed in the Constitution intended as a limitation beyond which the Legislature could not go?

Counsel concede there is a plain and specific constitutional limitation against additional compensation, but it is argued there is no limitation, express or implied, relative to expenses. The mileage of "three dollars for every twenty miles" allowed in going to and returning from the capital was in the nature of a personal expense paid directly to the legislator. Having thus enumerated this item of personal expense, we think there is a strong implication against the allowance of additional personal expenses. If the framers of the Constitution intended to allow other personal expenses, such as room rental and meals, it is reasonable to assume that provision would have been made therefor. The maxim, "Expressio unius est exclusio alterius," applies.

It is stated that the above rule of construction was rejected by this court in State v. Cochran, 55 Or. 157, 104 P. 419, 105 P. 884, 892, as having no application to the Constitution of Oregon. In that case the defendant was accused of violating the local option law of the city of St. Johns. Mr. Justice King was author of the original opinion. On rehearing, the statute which authorized an addition of two justices to this court was attacked as being in violation of the state Constitution. Mr. Justice McBride, speaking for the court, in a very able opinion held that the Constitution, considered in its entirety, did not expressly or impliedly limit the number of justices of the Supreme Court to three members. True, the rule of construction above invoked was held not applicable in the Cochran Case, but certainly that affords no basis for the contention that it shall never be resorted to in the construction of other constitutional provisions. Like any other rule of construction, it is invoked only to ascertain the true meaning of the language used, and is not a rigid rule of universal application. Where the meaning of words is clear and plain, there is no need of resorting to any rule of construction. It remains only for the court to give them force and effect. 6 R. C. L. 49; 12 C.J. 707. Mr. Justice McBride, in referring to section 1 of article 7 of the Constitution, providing that the judicial power of a state shall consist of a Supreme Court, circuit court, and county court, said the maxim above quoted "applies here, and the statement excludes all courts not there enumerated." The questions under consideration in the Cochran Case and those presented in the one at bar are, indeed, wholly dissimilar. What was said there is not controlling here.

Such allowance for personal expenses is, in effect, additional compensation which the Constitution expressly forbids. It seems to the writer that much ingenious reasoning is required to reach any other conclusion. If A pays B $5 per day for his services for a period of 30 days, and then for the next 30 days pays him $5 per day and board, will it be argued that B's compensation has not been increased? This is a common sense view which we think would have appealed to those pioneer citizens who had to do with the making of the Constitution. It is an interpretation which the Legislature itself recognized from the adoption of the Constitution in 1859 until the passage of the first resolution for...