State ex rel. Chapman v. Appling

• Decision Date: 20 January 1960
• Citation: 348 P.2d 759,220 Or. 41
• Parties: STATE of Oregon on the relation of R. F. CHAPMAN, Plaintiff, v. Howell APPLING, Jr., Secretary of State, Defendant.
• Court: Oregon Supreme Court

Page 759

348 P.2d 759

220 Or. 41

STATE of Oregon on the relation of R. F. CHAPMAN, Plaintiff, v. Howell APPLING, Jr., Secretary of State, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 9, 1959.

Decided Jan. 20, 1960.

Dean F. Bryson, Portland, argued the cause and submitted a brief for plaintiff.

Robert G. Danielson, Asst. Atty. Gen., argued the cause for defendant. With him on the briefs were Robert Y. Thornton, Atty. Gen., and Donal D. Sullivan, Asst. Atty. Gen.

LUSK, Justice.

This is a proceeding in mandamus in which the relator is R. F. Chapman, state senator for the Seventh Senatorial District, comprising Coos and Curry Counties, and the defendant is Howell Appling, Jr., Secretary of State. The case is here on the defendant's demurrer to the alternative writ based on the ground that the alternative writ fails to state facts sufficient to constitute a cause of action. The question presented is whether the legislative assembly of this state has the power to enact a statute increasing the compensation for services of its members beyond that provided by Article IV, § 29, Oregon Constitution, as amended in 1950. We took original jurisdiction because of the public importance of the controversy. The statute whose validity is challenged is ORS 171.071 (Oregon Laws 1959, ch. 391), which reads:

'The compensation of members of the Legislative Assembly shall be paid by the State Treasurer out of appropriations for legislative expenses, upon warrants drawn by the Secretary of State, at the rate of $175 per month, as follows:

'(1) Each member of the Legislative Assembly who has attended one or more days of a regular session shall be paid a sum equal to the salary of a member for 12 months as salary for the year in which the regular session is held. Payment of such sum shall be made as soon as possible after the first day the member attends the regular session.

'(2) Each member of the Legislative Assembly who has attended one or more days of a regular session shall be paid $175 per month as salary for the succeeding year in which a regular session is not held. Payment for each month shall be made at the end of the month.

'(3) If a member of the Legislative Assembly ceases to be a member for any reason before the expiration of his term and during a year in which a regular session is held, and his successor is elected or appointed and qualifies in such year, such successor shall be paid a sum equal to the salary of a member for 12 months as salary for such year. Payment of such sum shall be made as soon as possible after such successor is elected or appointed and qualifies.

'(4) In addition to the salary provided in subsection (3) of this section, the successor referred to in subsection (3) of this section shall receive salary as provided in subsection (2) of this section for the succeeding year in which a regular session is not held.

'(5) A member of the Legislative Assembly may retain any salary theretofore paid under subsections (1) to (4) of this section if he ceases to be a member for any reason before the expiration of his term.

'(6) If a member of the Legislative Assembly ceases to be a member for any reason before the expiration of his term and during a year in which a regular session is not held, and his successor is elected or appointed and qualifies in such year, such successor shall be paid salary as provided in subsection (2) of this section.

'(7) The presiding officers of the respective houses of the Legislative Assembly each shall be paid an additional compensation equal to one-third of the sum they are paid as salary as members of the Legislative Assembly under subsections (1) to (5) of this section. Payment of such additional compensation shall be made at the same times and in the same manner as the regular salary is paid. A presiding officer may retain any salary theretofore paid pursuant to this section if he ceases to be a presiding officer for any reason before the expiration of his term.'

The statute carried an emergency clause and became effective May 5, 1959. On May 6, 1959, Mr. Chapman made written demand on the defendant for the payment to him of the salary claimed to be due him as a member of the legislative assembly for the year 1959, to-wit, $900, that being the difference between the amount he had previously been paid, to-wit, $1200 (pursuant to Article IV, § I9, Oregon Constitution), and the amount fixed by Oregon Laws 1959, ch. 391. The defendant refused compliance with this demand, and the plaintiff thereafter sought the issuance of a writ of mandamus to compel such compliance.

The provision of the constitution which the defendant claims is violated by the 1959 Act is an amendment of Article IV, § 29, which was referred to the people by House Joint Resolution No. 5 of the 45th Legislative Assembly and adopted at the regular general election, November 7, 1950. See Oregon Laws 1951, p. 5. The amendment reads:

'The members of the Legislative Assembly shall receive for their services a salary of six hundred dollars ($600) per annum, payable as provided by law. For each session of the legislature, they shall also receive the sum of 10 cents for every mile they shall travel in going to and returning from their place of meeting, on the most usual route, and no other personal expenses. The presiding officers of the assembly shall, in virtue of their office, receive an additional compensation equal to one-third of their annual allowance as members.'

Prior to the adoption of this amendment, Article IV, § 29 read:

'The members of the legislative assembly shall receive for their services a sum not exceeding eight dollars ($8) a day, from the commencement of the session; but such pay shall not be more than 50 days for any regular session. When convened in extra session by the governor, they shall receive eight dollars ($8) per day; but no extra session shall continue for a longer period than 20 days. They shall also receive the sum of 10 cents for every mile they shall travel in going to and returning from their place of meeting, on the most usual route. The presiding officers of the assembly shall, in virtue of their office, receive an additional compensation equal to one-half of their per diem allowance as members.'

The foregoing provision was an amendment of Article IV, § 29, adopted in 1942. See Oregon Laws 1943, p. 5. As originally adopted in the Constitution of 1859, the section read:

'The members of the legislative assembly shall receive for their services a sum not exceeding three dollars a day from the commencement of the session; but such pay shall not exceed in the aggregate one hundred and twenty dollars for per-diem allowance for any one session. When convened in extra session by the governor, they shall receive three dollars per day; but no extra session shall continue for a longer period than twenty days. They shall also receive the sum of three dollars for every twenty miles they shall travel in going to and returning from their place of meeting on the most usual route. The presiding officers of the assembly shall, in virtue of their office, receiving an additional compensation equal to two-thirds of their per diem allowance as members.'

We call attention to these former provisions at this point, because they use the words 'not exceeding' before the stipulated compensation, and there are no similar words in the section as it now stands. An argument of the relator based on this change in language will be noticed later in this opinion.

The contention of the relator is that Article IV, § 29, as it now reads and has read since 1950, contains no express language of limitation on the power of the legislature, and none is to be implied; hence the legislative assembly has been set free to fix its own compensation. The section, according to this view, means the same as it would have meant had it read that the members of the legislative assembly shall receive for their services a salary of $600 a year until the legislative assembly shall otherwise provide.

We will discuss this contention in the light of certain well-established principles, namely, (1) that a state constitution does not confer power on the legislature, but is a limitation on power, and therefore it is competent for the legislature to enact any law not expressly or impliedly forbidden by the state constitution or prohibited by the Constitution of the United States, and (2) that a court will not strike down an act of the legislature unless its repugnancy to the constitution is clear and free from all reasonable doubt. These principles are so familiar that it is scarcely necessary to cite authority for them. The opinions in Jory v. Martin, 153 Or. 278, 56 P.2d 1093, a case on which the relator places his main reliance, and State v. Cochran, 55 Or. 157, 104 P. 419, 105 P. 884, contain numerous citations to adjudicated cases and the works of learned commentators where these fundamental rules of constitutional construction are expounded.

A third principle to be kept in mind is well stated in 11 Am.Jur. 659, Constitutional Law § 50:

'A cardinal rule in dealing with Constitutions is that they should receive a consistent and uniform interpretation, so that they shall not be taken to mean one thing at one time and another thing at another time, even though the circumstances may have so changed as to make a different rule seem desirable. In accordance with this principle, a court should not allow the facts of the particular case to influence its decision on a question of constitutional law, nor should a statute be construed as constitutional in some cases and unconstitutional in others involving like circumstances and conditions. Furthermore, Constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative action, and therefore the courts should never allow a change in...