Speer v. Martin, (No. 5396.)

• Decision Date: 14 January 1927
• Docket Number: (No. 5396.)
• Citation: 163 Ga. 535,136 S.E. 425
• Parties: SPEER, State Treasurer, et al. v. MARTIN et al.
• Court: Georgia Supreme Court

163 Ga. 535

136 S.E. 425

SPEER, State Treasurer, et al.

v.MARTIN et al.

(No. 5396.)

Supreme Court of Georgia.

Jan. 14, 1927.

(Syllabus by the Court.)

Hill and Gilbert, JJ., dissenting.

Error from Superior Court, Pulton County; John D. Humphries, Judge.

Petition by C. D. Martin and others against W. J. Speer, State Treasurer, and others. Judgment for plaintiffs, and defendants bring error. Reversed.

This was a petition to enjoin the Speaker of the House of Representatives and the President of the Senate from certifying to the State Treasurer, for mileage payments, the names of any of the members of the respective houses over which they presided, on account of an extraordinary session of the General Assembly, convened on March 19. 1926, to succeed an extraordinary session thereof, which adjourned on March 18, 1926, save such members who actually returned to their homes between such sessions, and to enjoin the State Treasurer from paying from the funds of the state any such mileage. On the hearing, the petitioners offered an affidavit of a member of the General Assembly, to the effect that he knew a majority of the members thereof did not return to their homes between the two sessions above mentioned. The defendants rested on answers which had been filed by the Speaker and the State Treasurer. The court passed an order enjoining the said Speaker of the House of Representatives from certifying to the State Treasurer any sums as mileage to be paid members of said House for going from the extraordinary session which adjourned on March 18, 1926, and for coming to the session which convened on March 19, 1926, except to those members who actually traveled from the first and to the second of said sessions, and enjoining the State Treasurer "from paying mileage to members of the General Assembly for said two sessions, except upon acertificate of the Speaker of the House of Representatives, and the President of the Senate, made as hereinbefore provided for mileage earned by actual travel and actually paid." The Speaker and the attorney for the State Treasurer for that officer filed a further petition praying the court to modify his above order with respect to the language, "actually paid, " showing to the court that such language would interfere with payment of mileage in accordance with the custom of paying the maximum amount of ten cents a mile allowed by law, and showing further that the question of payment of mileage according to the actual sums expended by the members was not raised in the first petition, but only the question as to whether the members were entitled to mileage for both of the extraordinary sessions, where they did not actually travel to their homes and back to the capital between the two. The court passed another order reciting that the court was of the opinion the mileage provision of the Constitution meant "mileage actually paid, not exceeding ten cents per mile, and not a flat mileage of ten cents per mile regardless of the amount paid for travel; and that the act of the Legislature, appropriating a flat mileage of ten cents per mile, is unconstitutional." The State Treasurer only excepted to the rulings of the court enjoining the Speaker from certifying, and the Treasurer from paying, mileage to members of the General Assembly who did not return to their homes between the close of the first extraordinary session and the opening of the second, and enjoining the Speaker from certifying, and the Treasurer from paying, any mileage to such members except the amounts actually paid out by them.

Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for plaintiffs in error.

McElreath & Scott, of Atlanta, for defendants in error.

RUSSELL, C. J. There is only one question presented in this ease,, whether the judge of the superior court erred in rendering the judgment sought to be reviewed, which restrained the Speaker of the House and the President of the Senate from certifying and approving the per diem of the members of the General Assembly at the extraordinary session which convened on March 19, 1926, and adjourned April 12, 1926. It is my opinion that the three co-ordinate branches of our state government are so completely independent each of the other that the judicial department of the government cannot interfere with any provision made by the legislative branch of the government which the General Assembly may deem to be necessary as expenses in discharging its duties of legislation. The question is not raised that the mileage is in an amount in excess of that allowed by the Constitution, but this proceeding merely seeks to determine under what circumstances such mileage may be allowed by the proper committees and presiding officers of the General Assembly. I think that the judge, in granting the injunction, exercised a power not conferred upon the courts, to wit, that of in a sense supervising the expenditures of the General Assembly for the conduct of its business of legislation.

Judgment reversed.

All the Justices concur, except HILL and GILBERT, JJ., dissenting.

BECK, P. J., and ATKINSON, J., concur in the judgment of reversal, being of the opinion that, upon a construction of article 3, § 9, paragraph 1, of the Constitution of Georgia (Civil Code of 1910, § 6454), members of the General Assembly are entitled to mileage for attendance upon an extra session of the Legislature, just as they would be for attendance upon a regular session, and, the session in question here being an extraordinary session called by the Governor, they were entitled to receive the mileage to and from their respective homes, whether or not they actually traveled, and that the court below erred in enjoining the payment of the same, and that to this extent the judgment of the trial court should be reversed.

HINES, J. I concur in the result of the judgment of reversal for this reason: Whether the members of the General Assembly are entitled to mileage for attending the extra session of the Legislature is a question for determination by that body, and is not a question for judicial determination. Skrine v. Jackson, 73 Ga. 377; 126 J. 878, § 381. By law the compensation due to the members of the General Assembly must be certified by the President and Speaker, respectively, upon the report of the auditing committee, to the Treasurer, who afterwards shall pay each member who presents his accounts duly audited. Civil Code 1910, § 354. By this statute a method is provided for determining what compensation including per diem, is due to the members of the General Assembly. This statute establishes a special tribunal for the determination of the matter in question. There certainly should be no judicial interference with this method and this tribunal before any action is taken by this special tribunal, by assuming that it will certify per diem to which members are not entitled under the Constitution.

GILBERT, J. (dissenting). This case presents a degree of novelty, as is shown by the fact that no case in any state has, been found which deals with the precise question. The states differ in their provisions for compensation of legislators, some making special provisions for extraordinary sessions and limiting mileage. Index-Digest State Constitu-tions. 898 et seq. It is certain that it has not previously been the subject of litigation in this state. As I view the principles involved, it is impossible for me to concur in the judgment of reversal, and the importance of the subject is my excuse for presenting this dissent. It is declared by two of the Justices that this is a political question, and therefore that this court has no jurisdiction (citing Skrine v. Jackson, 73 Ga. 377); that a special tribunal, consisting of the President of the Senate and the Speaker of the House, respectively, upon the report of the auditing committee, have been provided by statute to determine what compensation is due to members of the General Assembly. Civil Code 1910, § 354. The Skrine Case dealt with the power of the courts to interfere with legislative power delegated to the ordinary to declare the result in an election in favor of or against a fence. If this were a question of legislative policy of delegating such power, it would fall under the Skrine Case; but we are not dealing with the question of whether the Legislature should delegate certain powers to the ordinary, nor with the policy of referendum. Such questions are not justiciable. For a full discussion of this question, see Green v. Atlanta, 162 Ga. 641, 135 S. E. 84. At a very early date in the history of this court, when it was composed of Judges Lumpkin, Warner, and Nisbet, in the case of Beall v. Beall, 8 Ga. 210, the court dealt with the fundamental question of the respective powers and...