Peck v. State
| Decision Date | 29 December 1941 |
| Docket Number | 6940 |
| Parties | ARTHUR B. PECK, Plaintiff, v. STATE OF IDAHO, Defendant |
| Court | Idaho Supreme Court |
PUBLIC OFFICERS-EXPENSES-REIMBURSEMENT-CONSTITUTIONAL LAW-STATUTORY CONSTRUCTION-SPECIAL LEGISLATION.
1. Under constitutional and statutory provisions fixing amount which members of legislature shall receive for services there is no provision granting to members of the legislature the right to be reimbursed by the state for their expenses for subsistence and lodging while in its service. (I. C. A sec. 65-406; Const. art. 3, sec. 23.)
2. Where a constitution or statute specifies certain things, the designation of such things excludes all others.
3. The statute providing that members of the legislature shall receive five dollars per day for their services, and in addition shall receive the sum of ten cents per mile each way by the usual traveled route, was intended as a definite declaration of the amount to be received by each member of the legislature for services and expenses and limits the amount. (I. C. A. sec. 65-406.)
4. The statute appropriating money with which to pay present members of the legislature the amount of their expenses for subsistence and lodging while absent from their places of residence in the service of the state could not be construed as a grant of the right to reimbursement for such expenses since such construction would conflict with constitutional inhibition against the passing of special laws creating increasing or decreasing fees of public officers during the term for which officers are elected or appointed. (Sess. L., 1941, c. 73; I. C. A. sec. 65-406; Const. art. 3, sec. 9.)
5. Where statute appropriating money with which to pay legislative members the amounts of their expenses for subsistence and lodging while absent from their usual places of residence in the service of the state could not be construed as a grant of right to reimbursement for such expenses because of conflict with the constitutional provision prohibiting passing of special laws creating allowances to public officers during the term to which they are elected or appointed, Supreme Court would not consider other constitutional questions presented. (Sess. L., 1941, c. 73; I. C. A. sec. 65-406; Const. art. 3, sec. 19.)
The foregoing syllabus is by West Publishing Company, that following is by author of opinion.
I. There is nothing to be found in the Constitution or Statutes of Idaho granting to members of the legislature the right to be reimbursed by the state for their expenses for subsistence and lodging while in its service.
II. It is a universally recognized rule of construction that, where a constitution or statute specifies certain things, the designation of such things excludes all others.
III. To construe an act of the legislature appropriating money with which to pay its members the amounts of their expenses for subsistence and lodging while absent from their usual places of residence, in the service of the state, to be a grant of the right to reimbursement for such expenses, would render it void because of conflict with that part of Article III, 19 of the Constitution, which prohibits the legislature from passing special laws creating allowances to public officers during the terms for which they are elected or appointed.
ORIGINAL action in the supreme court for a recommendatory judgment, based on a claim by a member of the legislature for reimbursement for his actual and necessary expenses for subsistence and lodging while absent from his usual place of residence in the service of the state. Judgment for defendant.
Hamer H. Budge and Willis E. Sullivan, for Plaintiff.
A state constitution is not a grant but a limitation on legislative power, so that the Legislature may enact any law not expressly or inferentially prohibited by the Constitution of the State or Nation. (St. Joe Improvement Co. v. Laumierster, 19 Idaho 66; 112 P. 683; Idaho Power & Light Co. v. Blomquist, 26 Idaho 222; 141 P. 1083; Ann. Cas. 1916E, 282; State v. Banks, 33 Idaho 765; 198 P. 472; State v. Nelson, 36 Idaho 713; 213 P. 358.)
An appropriation to reimburse Legislature for their actual expenses while in attendance at a session of the State Legislature is not an increase of their compensation so to be prohibited by Sec. 23, Art. 3 of the Idaho Constitution. (1921.)
Bert H. Miller, Attorney General, and J. R. Smead, M. Casady Taylor, Leo Breshnahan and Robert M. Kerr, Jr., Assistant Attorneys General.
It was intended that local expense incurred at the State Capital should be paid from the per diem payment, without any further allowance for that purpose. (Proceedings of Const. Convention, Vol. I, pp. 534-549, Vol. II, pp. 1251-1261.)
The inclusion of the specified payments exclude any other allowances. (11 Am. Jur. 666, Secs. 56 and 57; State v. Gossett, 113 P.2d 415.)
Sec. 19, Art. III, prohibits any special law creating or increasing allowances to legislators during their present term of office.
The present law creates an additional "allowance" for local expense at Boise. (Chapter 73, Laws of 1941; Fergus v. Russell, (Ill.) 110 N.E. 887; Ashton v. Ferguson (Ark.), 261 S.W. 624; Funk & Wagnalls Standard Dictionary: An "allowance" for expense is neither salary nor compensation.
MORGAN, J. Ailshie, J., and Buckner, D.J., concur. Givens and Holden, JJ., dissent. Budge, C.J., did not sit with the court at the hearing, nor participate in the decision.
This action was commenced in this court pursuant to Idaho Constitution, Article V, § 10, wherein is provided:
"The supreme court shall have original jurisdiction to hear claims against the state, but its decision shall be merely recommendatory; no process in the nature of execution shall issue thereon; they shall be reported to the next session of the legislature for its action."
It appears from the complaint that the plaintiff herein is a member of the house of representatives from Bannock County and, as such, attended the 1941 Regular Session of the Legislature; that he presented a claim to the state auditor for $ 5.00, accompanied by proper receipts, and bearing the signature and approval of the speaker of the house of representatives, for reimbursement for one day's expenses necessarily incurred by him as a member of the legislature, for lodging and subsistence pursuant to 1941 Idaho Session Laws, page 141, Chapter 73; that the claim was certified by the auditor to the state board of examiners, and was disallowed.
Plaintiff prays for a judgment recommending to the next session of the legislature that he be paid, by an appropriation duly made, the sum of $ 5.00. Further, "that this court construe and determine his rights under and by virtue of Chapter 73 of the 1941 Session Laws and declare the same in such judgment of recommendation."
Defendant alleges in its answer "that said complaint herein does not state facts sufficient to constitute a cause of action or proceeding for a recommendatory, or other judgment, against this defendant." It is further alleged in the answer that said Chapter 73 is void because it is in conflict with, and violative of, Idaho Constitution, Article III, § 19 and § 23, and Article V, § 27.
Chapter 73 is:
That act does not expressly grant to the members of the legislature compensation for expenses incurred by them for board and lodging while absent from their usual places of residence, in the service of the state. It appropriates $ 35,000, or so much thereof as may be necessary, for that purpose.
[I] In enacting Chapter 73, the legislature apparently proceeded on the erroneous theory that its members were entitled to be paid their expenses, by the state, for board and lodging while in its service, without a grant to that effect, and all that was necessary to be done, in order for them to receive the money, was to enact a law appropriating it. The right of a member of the legislature to be reimbursed for his said expenses, for board and lodging, is not expressed in Chapter 73,...
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