State ex rel. Overhulse v. Appling
| Citation | 226 Or. 575,361 P.2d 86 |
| Parties | STATE of Oregon on relation of Boyd R. OVERHULSE and Stafford Hansell, Plaintiff, v. Howell APPLING, Jr., as Secretary of State of the State of Oregon, Defendant. |
| Decision Date | 07 April 1961 |
| Court | Supreme Court of Oregon |
Roy F. Shields, Portland, and Orval N. Thompson, Albany, argued the cause for plaintiff. With them on the brief was Malcolm F. Marsh, Salem.
Peter S. Herman, Asst. Atty. Gen., argued the cause for defendant. With him on the brief was Robert Y. Thornton, Atty. Gen.
This is a mandamus proceeding brought to test the constitutionality of senate joint resolution No. 1 of the 51st legislative assembly which provides that legislators shall be reimbursed for legislative expenses up to specified maximum monthly amounts. The relators are two members of the legislative assembly, Boyd R. Overhulse, a senator, and Stafford Hansell, a representative. The defendant is Howell Appling, Jr., Secretary of State. Because of the public importance of the question, we took original jurisdiction.
Senate joint resolution No. 1 reads as follows:
'Whereas each member of the Legislative Assembly incurs in the performance of his official duties during a session, in addition to his personal expenses, numerous legislative expenses, including but not limited to telephone and telegraph charges, office space rental, office expenses, postage, certain office supplies and certain stationery and reference materials, which expenses must be borne by the resources of each member and which total more than $75 a month during a regular session; and
'Whereas each member of the Legislative Assembly incurs in the performance of his official duties between sessions, in addition to his personal expenses incurred while attending meetings of interim committees and performing other official duties, numerous legislative expenses, including but not limited to telephone and telegraph charges, office space rental, office expenses, postage, office supplies, stationery and reference materials, and in addition must bear the legislative expenses of stenographic assistance on official matters, which expenses must be borne by the resources of each member and which total more than $1,800 a year; and
'Whereas membership in the Legislative Assembly is unduly burdensome for many persons who do not have the resources to pay these legislative expenses incurred in the public service, inasmuch as members receive a small salary and, during a session, no reimbursement for personal expenses other than one payment for mileage traveled to and from the Capitol, and it is in the public interest to obtain the services of those most competent without regard to their financial resources; and
'Whereas section 29, Article IV of the Oregon Constitution does not govern reimbursement for legislative expenses; now, therefore, Be It Resolved by the Senate of the State of Oregon, the House of Representatives jointly concurring:
'(1) Every member of the Fifty-first Legislative Assembly shall receive reimbursement for part of his legislative expenses up to a maximum of $75 a month during the period when the Legislative Assembly is in session, upon the filing of a certified claim therefor as provided in paragraph (4) of this resolution.
'(2) Every member of the Fifty-first Legislative Assembly shall receive reimbursement for part of his legislative expenses up to a maximum of $150 a month during the period when the Legislative Assembly is not in session, in addition to any reimbursement that may be provided for personal expenses incurred in attending meetings of interim committees, upon the filing of a certified claim therefor as provided in paragraph (4) of this resolution.
'(3) Payment of the reimbursement provided by this resolution shall be made monthly or at such periods in excess of monthly periods as are designated by the member in his certified claim for reimbursement, as provided in paragraph (4) of this resolution. However, no reimbursement may be paid to any individual for any month or part thereof during which such individual was not a member of the Legislative Assembly. For the purposes of this resolution and to preserve the continuity of his legislative functions, a presiding officer of either house is considered to be a member of the Legislative Assembly during such time that he serves as Governor during the temporary absence from the state of the Governor.
'(4) Each claimant shall file, in a form prescribed by the Legislative Fiscal Officer, claims for reimbursement that shall include a statement that the member incurred legislative expenses in excess of that amount for which reimbursement is sought during the period designated in the claim. The claim shall be submitted for approval of the presiding officer of the house of which the legislator is or was a member. Claims for reimbursement shall state the period for which the legislator is entitled under this resolution to receive reimbursement for his legislative expenses. In the event that a legislator does not qualify under this resolution for reimbursement for legislative expenses for an entire calendar month, or if the Legislative Assembly was in session for part of a calendar month, the amount of reimbursement for that calendar month shall be computed on a pro rata basis in compliance with this resolution. All claims must be filed within 30 days after the end of the calendar year to which the claim relates, or within 30 days after the member died or otherwse ceased to be a member of the Legislative Assembly.
'(5) The Secretary of State shall audit and allow all claims for reimbursement of legislative expenses authorized by this resolution that are approved by the presiding officer of the house of which the legislator is or was a member. In the event of the death, resignation or incapacity of the presiding officer of either house, or if such officer is out of the state, the Legislative Fiscal Officer shall approve claims for reimbursement filed by members of that house.
'The Secretary of State shall draw his warrant on the State Treasurer for payment of claims authorized by this resolution out of the appropriation for the payment of expenses of the Fifty-first Legislative Assembly, in the same manner as other expenses of the session are paid.'
The alternative writ alleges that during the regular session of the 51st legislative assembly, each of the relators incurred telephone charges in the regular performance of his official duties; that each submitted a claim for reimbursement for such expenses on the prescribed form; that each claim was approved by the presiding officer of the house of which the claimant is a member; and that the claims were filed with the defendant for audit and allowance as provided by the resolution.
The relators further allege that the defendant refused to audit or allow either of the claims or to draw a warrant for the payment thereof because of defendant's doubt as to the constitutionality of the resolution.
Defendant's answer admits all of the allegations of the writ except the allegations that relators claims are for legislative expenses.
The relators demurred to the answer on the ground that the facts alleged are insufficient to constitute adequate cause for the defendant's refusal to audit and allow relators' claims referred to in said writ and to draw warrants for the payment thereof.
Defendant's contention that senate joint resolution No. 1 is unconstitutional is based upon the claim that the resolution violates Article IV, § 29 of the Oregon Constitution. Article IV, § 29 provides for the compensation of legislators and contains an allowance for certain personal expenses. As originally adopted in the constitution of 1859, Art. IV, § 29 read as follows:
Although the people of Oregon voted on numerous proposals to amend section 29, it remained unchanged until 1942. In that year it was amended to increase the per diem compensation to $8 for no more than fifty days and the mileage was changed to 10 cents a mile. These changes are not material to the present case.
Article IV, § 29 reached its present form by amendment in 1950. It now reads as follows:
It will be noted that section 29 as originally adopted contained no express provision prohibiting allowance for personal expenses. However, this court held that section 29 impliedly prohibits the payment of personal expenses. Jones v. Hoss, 1930, 132 Or. 175, 285 P. 205. The 1950 amendment added the phrase 'and no other personal expenses.' This amendment changed the then existing implied prohibition against the payment of...
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