Peay v. Nolan

• Decision Date: 30 June 1928
• Parties: PEAY v. NOLAN, Treasurer, et al.
• Court: Tennessee Supreme Court

7 S.W.2d 815

157 Tenn. 222

PEAY v. NOLAN, Treasurer, et al.

Supreme Court of Tennessee.

June 30, 1928

Appeal from Chancery Court, Davidson County; John R. Aust, Judge.

Suit by Austin Peay against John F. Nolan, Treasurer, and another, to enjoin the payment of certain appropriations. From a decree dissolving the injunction and dismissing the bill complainant appeals. Reversed, bill sustained, and injunction made permanent.

Thomas H. Malone, Norman Farrell, Chas. C. Trabue, Avery Handly, and Wm. J. Wade, all of Nashville, and Austin Peay and A. B Broadbent, both of Clarksville, for appellant.

L. D Smith and K. T. McConnico, both of Nashville, for appellees.

COOK J.

The Legislature of 1927 appropriated $750 as expenses to each member of the General Assembly and directed the treasurer to pay it. The complainant, as a citizen and taxpayer, filed the bill against the treasurer and comptroller of the treasury to enjoin the payment of the appropriation. The chancellor sustained the defendants' motion to dissolve the injunction and dismiss the bill, and complainant appealed.

Through complainant's assignments of error it is insisted: First, that article 2, § 23, of the Constitution, which prescribes the compensation of members of the General Assembly, by implication forbids an additional appropriation for their expenses; second, if expenses may be allowed, this appropriation bears no reasonable relation to the expenses incurred by members, and is obviously an indirect attempt to increase their compensation contrary to the Constitution.

This is met by the insistence of the defendants: First, that the Constitution imposes no limitation, express or implied, upon the power of the General Assembly to provide for the expenses of members; second, the people having set up three co-ordinate departments of government and declared the independence of each, the judicial department is without power to determine the validity of an appropriation, by the legislative department, for the expenses of individual members of the General Assembly; third, and the legislative department having declared that the item appropriated is for the expenses of members of the General Assembly, the declaration is a conclusive finding of fact which cannot be reviewed by the judicial department.

The judicial department respects and sustains the power of the other departments of the state government. Maxey v. Powers, 117 Tenn. 381, 101 S.W. 181; Richardson v. Young, 122 Tenn. 471, 125 S.W. 664; Clements v. Roberts, 144 Tenn. 145, 230 S.W. 30.

The courts recognize that the legislative department, within its legitimate sphere, possesses all power not withheld by the Constitution. Smiddy v. Memphis, 140 Tenn. 104, 203 S.W. 512; Cavender v. Hewitt, 145 Tenn. 475, 239 S.W. 767, 22 A. L. R. 755; The Judges' Cases, 102 Tenn 551, 53 S.W. 134.

A review of our decisions, involving efforts to have the court arrest alleged abuses of legislative discretion, suggests that the short tenure of the office of Representative obscures its importance and minimizes the power of the members in session as the General Assembly. By inverse processes the power of the judicial department is exaggerated. In efforts to dispel the idea that the court may arrest legislative discretion, it has been said that, but for the constitutional limitation upon legislative power, "the Legislature of Tennessee would be as omnipotent as the Parliament of England is assumed to be by Blackstone." Blk. Com. 106; L. & N. R. R. Co. v. County Court, 1 Sneed, 637, 62 Am. Dec. 424.

In the exercise of legislative power, the General Assembly may accumulate vast revenues and expend them. Abuse of the power of taxation and expenditure would supply no basis for unauthorized judicial interference. The Legislature, intrusted with power to gather and expend revenue, is the guardian of the public fund (Demoville v. Davidson County, 87 Tenn. 219, 10 S.W. 353), subject only to control by the will of the electorate, and altogether free from judicial interference, until it appears that they have exceeded the limits imposed by the Constitution.

Admitting all that has been said, or may be said, concerning the power of the legislative department and its political independence, it remains that the Constitution is a restraining instrument, and the courts, empowered to declare the law, are required to subject challenged acts of the Legislature to constitutional tests. Every act violative of the intent and meaning of the Constitution is void, and the judicial department, in a proper proceeding, is empowered to so declare. Girdner v. Stephens, 1 Heisk. 283, 2 Am. Rep. 700; State v. Lindsay, 103 Tenn. 633, 53 S.W. 950; Mabry v. Baxter, 11 Heisk. 689; State v. McCann, 4 Lea, 1; Bouldin v. Lockhart, 1 Lea, 195; Bank v. Cooper, 2 Yerg. 608, 24 Am. Dec. 517; 12 C.J. 775; Cooley, Const. Lim. (8th Ed.) 133. In exercising this power the courts merely declare in favor of the superior law, the Constitution.

It follows, therefore, that the court must determine whether or not the Constitution imposes any limitation upon the power of the Legislature to provide for the expenses of members of that body, and beyond that whether or not this appropriation is such as the Constitution forbids. The only limitation, other than the express or implied restraint upon power to give gratuities, is that found in article 2, § 23, of the Constitution. It provides: "The sum of four dollars per day and four dollars for every twenty-five miles traveling to and from the seat of government, shall be allowed to the members of each General Assembly elected after the ratification of this Constitution, as a compensation for their services. But no member shall be paid for more than seventy-five days of a regular session, or for more than twenty days of any extra or called session, or for any day when absent from his seat in the Legislature, unless physically unable to attend. The Senators, when sitting as a court of impeachment, shall each receive four dollars per day of actual attendance."

When construing constitutional provisions the state of things when the provision originated is to be considered. The allowance of per diem and its equivalent measured by distance originated with the Convention of 1796 when 25 miles indicated a day's journey; and so in 1870, as originally, distance was used to equalize days of service by adding to the 75 days of a regular session, and 20 days of a special session, additional days of service indicated by each 25 miles of travel to and from the residence of members.

The intent to confine the limitation to compensation is clearly expressed, and the court cannot, by resorting to arbitrary rules of construction, extend the meaning conveyed by the language used in article 2,§ 23. To do so would result in the judicial amendment of the fundamental law. The provision fixing the compensation of members of the General Assembly for their services does not expressly or by implication impose a limitation upon the power of the Legislature to provide for the expenses of the legislative department, nor upon the power to provide for the official expenses of members. Therefore members of the Legislature may be reimbursed for extraordinary expenses necessarily incurred by them in the course of, and in consequence of, the discharge of their official duties, but not for personal expenses, intended to be covered by the compensation allowed by law. Throop, Public Officers, 495; People v. Wemple, 115 N.Y. 302, 22 N.E. 272; Briscoe v. Clark County, 95 Ill. 309.

The term "per diem" as used in article 2, § 23, is synonymous with "salary." The term salary imports the idea of compensation for personal service, and not the repayment of money expended in the discharge of the duties of the office. Throop, Public Officers, 441. Compensation attached to the office, whether "salary" or "per diem" (22 R. C. L. p. 526, note 4), is not given to the incumbent because of any supposed legal duty resting upon the public to pay for the service (Moore v. Strickling, 46 W.Va. 515, 33 S.E. 274, 50 L. R. A. 280), and a law creating an office without any provision for compensation carries with it the implication that the services are to be rendered gratuitously. 22 R. C. L. p. 532. The object in allowing compensation for official service is to enable public officials to give due attention to their official duties. State ex rel. v. Nashville, 15 Lea, 705, 54 Am. Rep. 427.

These principles touching the duty of the citizen in serving the state are derived from the common law and were understood when the Constitution of 1870 was promulgated, and when the provision therein was made to compensate members of the General Assembly, and the allowance for compensation was intended to cover the personal expenses of members, that is expenses incident to their personal comfort, convenience, and taste, and so as to be distinguished from official expenses; that is, expenses arising from the performance of official duty. Heublein v. New Haven, 75 Conn. 545, 54 A. 298; Dixon v. Shaw, 122 Okl. 211, 253 P. 500, 50 A. L. R. 1237.

The cases holding that compensation fixed by statute, without specific provision for expenses, limits the amount a public official may receive, are inapplicable because there the right to an allowance for official expenses is dependent upon whether the statute authorizes it, as indicated in Whitthorne v. Turner, 155 Tenn. 303, 293 S.W. 147. Here the controlling question is whether the Constitution imposes a restraint, without which the legislators, under the plenary power, may provide for official expenses.

The rule is well stated in 29 Cyc. 1427-1429, as follows:

"Where the compensation is fixed by the Constitution, or where there is a constitutional

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