Reed v. Gallet

• Citation: 50 Idaho 638,299 P. 337
• Decision Date: 14 May 1931
• Docket Number: 5728
• Parties: WILLIAM T. REED, Suing on Behalf of Himself and of Other Persons Similarly Situated and Interested in the Subject of This Suit, Plaintiff, v. E. G. GALLET, as State Auditor of the State of Idaho, Defendant
• Court: Idaho Supreme Court

299 P. 337

50 Idaho 638

WILLIAM T. REED, Suing on Behalf of Himself and of Other Persons Similarly Situated and Interested in the Subject of This Suit, Plaintiff, v. E. G. GALLET, as State Auditor of the State of Idaho, Defendant

No. 5728

Supreme Court of Idaho

May 14, 1931

OFFICERS-COMPENSATION-MILEAGE-CONSTITUTIONAL LAW.

1. Term "mileage" imputes necessity of travel to recover under provisions authorizing payment of mileage, mileage being allowance for traveling expenses at certain rate per mile.

2. Mileage allowed officer constitutes compensation only to extent of amount saved out of mileage allowance after actual travel is undertaken.

3. Court must give practical effect to language of Constitution.

4. Mileage allowance to legislators accrues only where members actually traverse distance from their respective homes to capital and thus incur expense (Const., art. 3, sec. 23).

5. Statute allowing mileage to members of legislature for attendance at extraordinary session held void as to legislators who remained at capital after adjournment of regular session pending convening of special session on following day (Laws 1931, Ex. Sess., chaps. 1, 4; Const art. 3, sec. 23).

APPLICATION for Writ of Mandate. Alternative writ quashed and proceeding dismissed.

Alternative writ of mandate quashed and the proceeding dismissed.

Sidman I. Barber, for Plaintiff.

Mileage may be part of the compensation and pay of an official. (Marioneaux v. Cutler, 32 Utah 475, 91 P. 355; Christopherson v. Reeves, 44 S.D. 634, 184 N.W 1015; Fergus v. Russell, 270 Ill. 626, 110 N.E. 887; Chapin v. Wilcox, 114 Cal. 498, 46 P. 457; State v. Raine, 49 Ohio 580, 31 N.E. 741; Dixon v. Shaw, 122 Okla. 211, 253 P. 500, 50 A. L. R. 1232; Leckenby v. Post Printing & Pub. Co., 65 Colo. 443, 176 P. 490; Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 815, 60 A. L. R. 408; State v. Thomason, 142 Tenn. 527, 221 S.W. 491.)

The legislator shall receive as compensation "for his services" per diem and mileage; but "such pay" shall not exceed $ 300 "for per diem allowances" in any one session. (Const., art. 3, sec. 23.)

Fred J. Babcock, Attorney General, and Z. Reed Millar, Assistant Attorney General, for Defendant.

Mileage is compensation allowed to public officers for their expenses while traveling on public business. (46 C. J. 1018; State v. Clausen, 142 Wash. 450, 253 P. 805; United States v. Smith, 158 U.S. 346, 15 S.Ct. 846, 39 L.Ed. 1011; Bouvier, Law Dictionary.)

Where a Constitution provides a per diem for services and a rate for miles traveled for members of the legislature, the per diem is salary or compensation for services and the mileage is an allowance to the member for expenses incurred. (Jones v. Hoss, 132 Ore. 175, 285 P. 205; Dixon v. Shaw, 122 Okla. 211, 253 P. 500, 50 A. L. R. 1232; Ashton v. Ferguson, 164 Ark. 254, 261 S.W. 624; Re Advisory Opinion, 90 Fla. 708, 107 So. 366; Fergus v. Russel, 270 Ill. 626, 110 N.E. 887; State v. Turner, 117 Kan. 755, 233 P. 510; State v. Clausen, 142 Wash. 450, 253 P. 805; Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 815, 60 A. L. R. 408; Terrell v. King, 118 Tex. 237, 14 S.W.2d 786.)

BUDGE, J. Givens, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

Plaintiff, a member of the current, twenty-first legislature of this state, from Kootenai county, was granted an alternative writ of mandate against the state auditor requiring the latter to draw, or show cause why he should not, a warrant for the payment to plaintiff of a sum equivalent to the number of miles from plaintiff's home to the capital and return at the rate of ten cents per mile, for attendance at the extraordinary session of the legislature convened at Boise, March 6-13, 1931.

As chapters 1 and 4 of the laws passed at the extraordinary session, an appropriation was made for the payment of the mileage of the officers and members for the extraordinary session, the state auditor being authorized and directed to draw his warrants on the general fund in payment thereof upon the certificate of the presiding officer of the House or Senate, as the case might be. The Speaker of the House duly executed and delivered to the state auditor his certificate certifying that plaintiff was entitled to a sum equivalent to the number of miles from his home in Kootenai county to the capital and return, multiplied by the regular mileage rate, for his attendance at the special session of the legislature. The defendant state auditor refused to draw and deliver to plaintiff such warrant.

The regular session of the legislature adjourned at 9 o'clock P. M., March 5, 1931. By proclamation of the Governor, read to the members of the legislature immediately prior to adjournment of the regular session, the legislature was called into special session at 12 o'clock noon the following day, March 6, 1931, and, pursuant to call, both branches of the legislature convened at said time and date.

Plaintiff received mileage for attendance at the regular session, and it is admitted that he did not return to his home upon the adjournment of the regular session but remained at the capital during the interim between the two sessions. That is, plaintiff did not actually travel the distance from his home to the capital and return pending the calling of the special session, but remained in Boise after the adjournment of the regular session and through the special session. It is apparent therefore that plaintiff did not incur any expense for travel to the special session of the legislature.

Article III, section 23, of the Constitution of this state reads as follows:

"Each member of the legislature shall receive for his services a sum not exceeding $ 5 per day from the commencement of the session, but such pay shall not exceed for each member, except the presiding officers, in the aggregate, $ 300 for per diem allowances for any one session; and shall receive each the sum of 10 cents per mile each way by the usual traveled route.

"When convened in extra session by the governor, they shall each receive $ 5 per day; but no extra session shall continue for a longer period than 20 days, except in case of the first session of the legislature. They shall receive such mileage as is allowed for regular sessions. The presiding officers of the legislature shall each in virtue of his office receive an additional compensation equal to one-half his per diem allowance as a member: Provided, That whenever any member of the legislature shall travel on a free pass in coming to or returning from a session of the legislature, the number of miles actually traveled on such pass shall be deducted from the mileage of such member."

Is the allowance for mileage, set forth in the above constitutional provision, intended solely as reimbursement for expense incurred in travel, or is a member of the legislature entitled to a sum equivalent to mileage for attendance at a special session of the legislature regardless of whether he actually travels the distance from his residence to the capital and return?

Webster's New International Dictionary defines mileage as an allowance for traveling expenses at a certain rate per mile. Certainly this well-understood meaning of the term imputes the necessity of travel in order for one, claiming a sum as due under a constitutional or statutory provision authorizing payment of mileage, to be entitled to such payment. (46 C. J., p. 1018; State v. Clausen, 142 Wash. 450, 253 P. 805; United States v. Smith, 158 U.S. 346, 15 S.Ct. 846, 39 L.Ed. 1011; 2 Bouvier's Law Dictionary, p. 2209.)

In a limited sense, mileage may become a part...