State v. Thomason

• Decision Date: 06 May 1920
• Citation: 221 S.W. 491
• Parties: STATE ex rel. WELDON et al. v. THOMASON et al.
• Court: Tennessee Supreme Court

221 S.W. 491

STATE ex rel. WELDON et al. v. THOMASON et al.

Supreme Court of Tennessee.

May 6, 1920.

Appeal from Chancery Court, Davidson County; Jno. T. Lellyett, Chancellor.

Agreed case between the State, on the relation of W. E. Weldon and others, and J. B. Thomason and others. From a judgment in favor of the latter, the former appeal. Reversed, and judgment entered in favor of relators.

Joseph C. Higgins, of Nashville, and W. K. Anderson, of Knoxville, for appellants.

E. J. Smith, of Nashville, for appellees.

BACHMAN, J.

The present controversy is succinctly stated in the agreed case submitted to the chancery court of Davidson county under the provisions of sections 5206-5210 of Thompson's Shannon's Code, and is as follows:

Agreed Case.

"There having arisen between relators and the defendants a substantial controversy as to the rights of relators and the duties of defendants respecting the matters hereinafter disclosed, the following statement of facts and of issues arising therefrom has this day been agreed upon between counsel representing the relators and the defendants through themselves and Special Attorney Edward J. Smith, representing them:

"(1) Relators were members of the Legislature of the state of Tennessee from Shelby, Madison, Henry, Grundy, Knox, and other counties, having been regularly elected thereto in November, 1918. They were duly inducted into office and were in constant attendance upon the Legislature during its sittings of 1919, and are entitled to all sums that were lawfully appropriated to and may lawfully be claimed by legislators for 75 days of service.

"(2) Relators live away from Nashville. They incurred while in attendance upon the Legislature of 1919, in the matter of stenographic hire, postage, stationery, attendance upon committees, other than recess committees, and personal and living expenses incurred while serving at the capitol and in Nashville as legislators, considerable sums of money. Relators have received their $4 per day and $4 mileage as provided by the Constitution, but have not been reimbursed the expenses incurred by them in Nashville during the 1919 legislative session. The appropriation of $150 to each member of the General Assembly was made to reimburse each member for the expenses incurred as above specified.

"(3) It is further agreed that the Miscellaneous Appropriation Bill, filed herewith as Exhibit A, but not to be copied, was regularly passed by the Legislature and approved by the Governor on April 17, 1919, being chapter 135 of the 1919 session. It is agreed that either party may read therefrom such portions as may be deemed pertinent, and that no other certification is needed.

"(4) It is further agreed that the General Assembly of 1919 adjourned sine die on April 17, 1919.

"(5) Relators have made demand upon the comptroller through themselves or counsel for the issuance of his warrant upon the treasurer for said $150 each, but the comptroller refused and still refuses so to do, being advised that the appropriation of $150 is illegal and unconstitutional.

"(6) It is further agreed that there is or will be in the treasury out of the current year's state collections a sufficient sum of appropriated moneys to meet the appropriation provided for the legislators by the aforesaid Miscellaneous Appropriation Bill.

"(7) The section of the Constitution brought into review is No. 23 of article 2, as follows: `The sum of $4.00 per day and $4.00 for every twenty-five miles going to and returning from the seat of government shall be paid the legislators as a compensation for their services.'

"(8) It is further understood that there arises upon the foregoing statement the question as to whether the appropriation of $150 is constitutional; and it is expressly agreed that this question is to be submitted to the Honorable John T. Lellyett, chancellor, as an agreed case under the statute, with the further stipulation that this shall be treated as a mandamus suit upon the comptroller and treasurer, and that judgment will be rendered as in such cases, and that this agreed case shall be treated as a bill for mandamus and a demurrer thereto with further stipulation of no further defense upon the part of these defendants than demurrer. It is further agreed that the costs will abide the event of the suit, and that either party may appeal directly to the Supreme Court if not satisfied with the decree of the chancellor.

"(9) It is further agreed that the final decision in this cause will be determinative of the right of each and all of the legislators of the $150 appropriation.

                    "Respectfully submitted
                                           "E. J. Smith
                                           "Joseph Higgins
                

"State of Tennessee, Davidson County.

                  "Edward J. Smith, special attorney for the
                state, and representing Messrs. Thomason and
                McAlister, and Joseph Higgins, solicitor for
                relators, each makes oath in due form that the
                foregoing is a real controversy, and that the
                same is submitted to the honorable court in
                good faith as an agreed case, as provided by
                statute.                    Edward J. Smith
                                            "Joseph Higgins
                

"Sworn to and subscribed before me this 10th day of June, 1919.

"[Seal] Bessie Hughes, Notary Public."

The chancellor sustained the demurrer filed by respondents adjudging that the appropriation sought to be made was in contravention of section 23, art. 2, of the Constitution, and dismissed the proceedings. In the view we take of the case there arise but two questions decisive of the controversy: First, the power of the Legislature to make appropriations for the necessary expenses of the members of that body when viewed in the light of our constitutional provisions; and, second, the binding effect of the admissions made or stipulations entered into between counsel construing the language used by the Legislature in making the appropriation in question. It is, of course, to be conceded at the outset that the appropriation made is unconstitutional and void, if the same can by proper construction be held to be an effort on the part of the Legislature to increase the compensation of the members of that body beyond the amount mandatorily fixed by section 23, art. 2, of the Constitution. By all rules of constitutional interpretation the amount therein designated as compensation to the legislators is to be deemed a direct limitation upon the power of the Legislature to make any other or different allowance for that purpose; it is the mandatory and conclusive direction of the people upon the subject, to alter which every branch of the government is equally powerless. It is also well settled that the acceptance of public office at a fixed salary precludes the allowance of a greater or additional amount.

"Public office is taken and held with the emoluments and burdens which the law imposes, and the burdens are or may be far beyond the compensation allowed in many cases. But this gives no valid claim for additional compensation." McHenderson v. Anderson County, 105 Tenn. 609, 59 S. W. 1020.

These propositions are elementary, and were the questions before us those involving the compensation of the members of the Legislature as distinguished from their expenses as designated in the appropriation act, there could be no doubt of the invalidity of the appropriation sought to be made. While, as has been seen, there is, in our Constitution, a limitation upon the power of the Legislature to alter the compensation therein fixed for the members of that body, it is clear that the Constitution contains no inhibition, express or implied, upon the power to appropriate public funds for the expenses of all departments of the government, including those of its own members. That this is true cannot be attributed to any oversight or lack of knowledge on the part of the framers of the Constitution; for it must have been known to them as a matter of common knowledge that under our forms of government, both state and federal, there existed plenary authority in the legislative branches to make appropriations for expenses, which power had been uniformly and consistently exercised without question since the emancipation of the colonies and the formation of the Union.

That the people in the formation of the Constitution might have restricted the power of their representatives to provide for the expenses of all or certain departments of government is unquestionable. That they did not do so makes it not at all improbable that an extensive vision of the development and growth of the affairs of our commonwealth, with a corresponding increase and expansion of governmental duties, attended by necessarily greater expenses, prompted them to repose the administration and control of these important financial matters in the integrity, wisdom, and sense of justice of those citizens successively to be chosen by the people to represent them. Certain it is that, finding no constitutional limitation upon this power sought to be exercised by the Legislature, that body is not responsible to the other co-ordinate branches of our government, but alone to their consciousness of the welfare of the state and to the people whom they represent. As we have...