Russell v. Cone

• Decision Date: 25 May 1925
• Docket Number: 12
• Citation: 272 S.W. 678,168 Ark. 989
• Parties: RUSSELL v. CONE
• Court: Arkansas Supreme Court

272 S.W. 678

168 Ark. 989

RUSSELL v. CONE

No. 12

Supreme Court of Arkansas

May 25, 1925

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed. Petition denied.

Emerson & Donham, for appellant.

H W. Applegate, Attorney General, and John L Carter, Assistant, for appellee.

SMITH J. HUMPHREYS, J., dissenting.

OPINION

SMITH, J.

Appellant filed a complaint in the Pulaski Chancery Court, alleging that he was a citizen and taxpayer of the State, and that the defendants, Cone and Sloan, were respectively the Auditor and the Treasurer of the State. That the General Assembly, at its regular 1925 session, had, by act No. 167, entitled "An act for the completion of the records of the work of the Forty-Fifth General Assembly," provided and required that seventeen members of the Senate of the said Assembly and seventeen members of the House of Representatives of the Assembly should remain on duty as members of such Assembly after adjourning on March 12, 1925, for a period of time expiring not later than April 23, 1925, for the purpose of completing the work of the Assembly, and that, for such services, sixteen of said senators and sixteen of the representatives should receive the sum of $ 6 each per day, and that the president of the Senate and the Speaker of the House of Representatives, who were made members of said committee, should receive $ 8 each per day, and all of said senators and representatives should receive, in addition, the sum of $ 1 per day for stamps during the time of their said service.

It was further alleged that vouchers covering such services had been presented to the Auditor, who would issue warrants thereon, which the Treasurer of the State would cash, unless they were enjoined from so doing, and there was a prayer that the Auditor and Treasurer be enjoined from so doing.

By an amendment to the complaint it was alleged that none of said senators and representatives who were named in said act 167 had, in fact, performed any services whatever, and that there was no occasion or necessity for the appointment of said committee, and that the act was a mere subterfuge whereby the said senators and representatives might draw money from the State treasury, in violation of the Constitution of the State.

To this complaint and amendment thereto an answer was filed, denying, in general terms, the allegations thereof, and a demurrer was also filed, alleging that the complaint did not state a cause of action.

The complaint also contained allegations to the effect that the bill was not properly passed, to which an answer was filed denying that allegation, but, at the hearing, it was stipulated that the journals of both the Senate and the House of Representatives disclosed that act 167 was properly passed and had been duly signed and approved by the Governor, and this allegation has therefore been abandoned.

Testimony was offered and was heard by the chancellor at the trial as to the services performed by said committee, and the court found the fact to be that said act was not a subterfuge, and that services were performed by the members of the committee named in said act, and the complaint was dismissed as being without equity, and the plaintiff has appealed.

Without reviewing the testimony heard by the court below, it may be summarized by saying that it was to the effect that only a few of the senators or representatives could or did work at any one time, and that a number of them had done no work at any time, yet all of them had received vouchers entitling them to warrants from the Auditor of State, which would be paid by the Treasurer of the State out of the appropriation made by the General Assembly for that purpose.

In this connection it may also be said that the act under review provided that, in addition to the senators and representatives who were named in the act, the Secretary of the Senate, with two assistant secretaries, the journal clerk, with two assistants, the bill clerk, the enrolling clerk, and one assistant, and nineteen extra clerical helpers who had been named by the president of the Senate, should likewise be employed, and that a like number of employees on the part of the House were also provided for. A grand total of forty-six persons on the part of the Senate and a like number on the part of the House were thus provided for by the act.

The testimony shows that only fifteen days were required to enroll the bills for presentation to the Governor, and that a comparatively small number of persons could have performed this service within that time. No injunction was prayed in regard to paying these clerks, and the court made no order in regard to them.

It is insisted, for the reversal of the decree of the court below, that the act is unconstitutional and void, for the reason that there is no authority in law for the appointment of members of the General Assembly after the adjournment of the session thereof, and further, that it is apparent, from the very number of members appointed in comparison with the amount of work which they might perform, that the act was a mere subterfuge to increase the compensation of the members named in the act beyond that allowed by the Constitution, and that the act is therefore unconstitutional and void.

We think the controlling question in the case, so far as this appeal is concerned, is the power of the Legislature to appoint the committee at all.

This question was first considered in the case of Dow v. Beidelman, 49 Ark. 325, 5 S.W. 297, where the court had occasion to construe article 6, § 15, of the Constitution, which reads as follows: "Every bill which shall have passed both houses of the General Assembly shall be presented to the Governor; if he approves it, he shall sign it' but, if he shall not approve it, he shall return it, with his objections, to the house in which it originated, which house shall enter the objections at large upon their journal, and proceed to reconsider it. If, after such reconsideration, a majority of the whole number elected to that house shall agree to pass the bill, it shall be sent, with the objections, to the other house, by which likewise it shall be reconsidered; and, if approved by a majority of the whole number elected to that house, it shall be a law; but, in such cases, the vote of both houses shall be determined by 'yeas' and 'nays,' and the names of the members voting for or against the bill shall be entered on the journals. If any bill shall not be returned by the Governor within five days, Sunday excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall become a law, unless he shall file the same, with his objections, in the office of the Secretary of State, and give notice thereof by public proclamation within twenty days after such adjournment."

In construing this section of the Constitution the court there said: "Nothing in this language implies that all bills must be transmitted to the Governor before the adjournment of the Assembly. He is prevented by the adjournment from returning the bill, whether the bill is in his hands before it adjourns or reaches his hands afterwards. The term of members does not expire when it adjourns, nor do all the functions and powers of its officers then cease. It may often happen, in the case of bills passed in the closing hours of a session, that there is not sufficient time to enroll them properly and present them to the executive before an adjournment takes place. The effect is not that, under the circumstances, the bill fails to become a law. Our constitutional provision differs materially in this respect from § 7 of article 1 of the Constitution of the United States."

This question was next considered in the case of Tipton v. Parker, 71 Ark. 193, 74 S.W. 298, in which case the validity of a warrant issued to a member of the Senate for services performed on a committee after the adjournment of the session of the General Assembly was involved. The committee had been appointed under a resolution which directed that the members thereof should receive the same pay as when the Legislature was in session. The warrant was held invalid, but this was done only because the committee was provided for by resolution, and not by a bill regularly passed and which had been approved and had become a law. The court there said: "The committee, being the mere agency of the body which appointed it, dies when the body itself dies, unless it is continued by law; and it is not within the power of either house of the General Assembly to separately enact a law, or pass a resolution having the force and effect of a law. To do this requires a majority of each house voting in its favor. Const. 1874, art. 5, § 23. The only legitimate office, power or duty of a committee of the Senate, in the absence of a law prescribing other functions and duties, is to furnish the Senate which appointed it with information, and to aid it in the discharge of its duties. The Senate alone has no power to appoint a committee to make an investigation after its adjournment and to make a report to another department of the government or to another session of the Senate or General Assembly. Ordronaux, Cons. Leg. p. 375."

In the case of Monroe v. Green, 71 Ark. 527, 76 S.W. 199, § 15 of article 6 of the Constitution was again considered. The case involved the time and manner within which bills must be presented to the Governor for his consideration after the adjournment of the Legislature. The joint rules of the House and Senate relating to the enrollment and presentation of bills to the Governor were set out in...