State v. Turner
| Decision Date | 13 February 1925 |
| Docket Number | 26,259 |
| Citation | 117 Kan. 755,233 P. 510 |
| Parties | THE STATE OF KANSAS, ex rel. CHARLES B. GRIFFITH, as Attorney-general, etc., Plaintiff, v. NORTON A. TURNER, as State Auditor, etc., Defendant |
| Court | Kansas Supreme Court |
Decided January, 1925.
Original proceeding in quo warranto.
SYLLABUS BY THE COURT.
CONSTITUTIONAL LAW--The Act of the Present Legislature (House bill No. 46) Which Increases the Compensation of the Lieutenant Governor and Members of the Legislature is Invalid Because It Violates Section 15 of Article 1 of the Constitution. The act of the legislature of 1925 which provides that $ 5 a day expense money shall be paid to the lieutenant governor and each member of the legislature for each day of any regular or special session is invalid because it violates section 3 of article 2 of the constitution, which fixes the compensation of the members of the legislature at not more than $ 150 for each regular session and not more than $ 90 for any special session, and violates section 15 of article 1 of the constitution, which prohibits the legislature from increasing or diminishing the compensation of the officers named in that article during the period for which they shall have been elected.
Charles B. Griffith, attorney-general, and W. C. Ralston, assistant attorney-general, for the plaintiff.
James W. Finley, of Chanute, Benjamin F. Hegler, of Wichita Douglas Hudson, of Fort Scott, and E. R. Sloan, of Holton, for the defendant.
In this action the plaintiff questions the validity of an act of the legislature of 1925 which provides for the payment of five dollars a day for expense money to each member of the legislature and to the lieutenant governor for each day of any regular or special session of the legislature. The act has been approved by the governor; it has been published as required by law, and is now a part of the law of this state unless it violates some provision of the constitution.
The act is as follows:
The plaintiff contends that the act violates section 3 of article 2 and section 15 of article 1 of the constitution. Section 3 of article 2 reads:
"The members of the legislature shall receive as compensation for their services the sum of three dollars for each day's actual service at any regular or special session, and fifteen cents for each mile traveled by the usual route in going to and returning from the place of meeting; but such compensation shall not in the aggregate exceed the sum of two hundred and forty dollars for each member as per diem allowance for the first session held under this constitution, nor more than one hundred and fifty dollars for each session thereafter, nor more than ninety dollars for any special session."
Section 15 of article 1 reads:
"The officers mentioned in this article [§ 1, art. 1] shall, at stated times, receive for their services a compensation to be established by law, which shall neither be increased nor diminished during the period for which they shall have been elected."
Section 1 of article 1 names the lieutenant governor as one of the officers whose compensation shall not be increased nor diminished during the term for which he shall have been elected.
An examination of section 3 of article 2 of the constitution is necessary. It makes provision for the payment of expenses in going to and returning from the place at which the legislature meets. No other expenses are provided for. The principle of statutory construction, expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), will be of some assistance in reaching a correct conclusion.
In 12 C. J. 707, this language is found:
"Under the maxim, expressio unius est exclusio alterius, the enumeration of certain specified things in a constitutional provision will usually be construed to exclude all things not thus enumerated; but this is a rule to be used merely in ascertaining the true meaning, and is not a rigid rule of universal application, and should never be applied to obscure the meaning or thwart the purpose of a constitutional provision."
6 R. C. L. 49 says:
"In construing a constitution, resort may be had to the well-recognized rule of construction contained in the maxim expressio unius est exclusio alterius, and the expression of one thing in a constitution may necessarily involve the exclusion of other things not expressed; but this rule, like all other mere rules of construction applied to ambiguous words, must yield to proof of surrounding facts and circumstances which satisfactorily demonstrates that the meaning intended by the parties was different."
If the maxim expressio unius est exclusio alterius applies, all personal expenses of legislators other than mileage are excluded by the constitutional provision.
All legislative expenses may be properly paid. The expenses that may be paid are not those that are incurred by a member of the legislature because he is at the capital city; they are those that are incurred by him in the performance of his duties. They are legislative expenses, not personal expenses. The distinction between expenses that are legislative and those that are personal is that legislative expenses are those that are necessary to enable the legislature to properly perform its functions, while those that are personal are those that must be incurred by a member of the legislature in order to be present at the place of meeting--expenses for his personal comfort and convenience, which have nothing to do with the performance of his duty as a member of the legislature. Personal expenses are those incurred for rooms, meals, laundry, communications with their homes, and other things of like character. Under Bailey v. Kelly, 70 Kan. 869, 79 P. 735, personal expenses cannot be paid. In that case this court said:
(Syl.)
If an appropriation for living expenses for the governor increases his compensation, an appropriation intended to cover hotel expenses of the members of the legislature likewise increases their compensation.
The constitution fixes the compensation of members of the legislature at $ 3 per day and provides that such compensation shall not be more than $ 150 each for each regular session, nor more than $ 90 each for each special session. This compensation, fixed by the constitution, cannot be increased. Any law which in any way, either directly or indirectly, increases the compensation of any member of the legislature must be held invalid.
The constitution provides that the per diem allowance for each member shall not be more than $ 150 for each regular session, nor more than $ 90 for any special session. Stronger language to limit the amount of compensation could not have been used. The constitution could very well have left the pay of legislators to the judgment of each legislature, but that has not been done. The salary or compensation of no other officer is fixed by the constitution. Why was this provision placed in the constitution? There is but one answer--that the members of the legislature should not have the power to increase their own compensation.
Few, if any, of the members of the legislature will use as much as five dollars a day as expenses incidental to the performance of their duties. What will be done with the remainder of the five dollars a day after each member pays all expenses incident to his duties? If he keeps the money--and it is presumed that he will--it adds to his compensation; it cannot do otherwise. The constitution says $ 150 and no more; one dollar more violates the constitution.
In the brief of the defendant, it is said:
"It is conceded that if an appropriation were made of an amount which would be manifestly unreasonable, and would thereby actually increase the compensation of members of the legislature, it would be void."
No case has been cited holding a law invalid because it appropriated an amount of money larger than the courts thought reasonable. Probably none can be cited except where the amount appropriated has exceeded the amount authorized. It is a part of constitutional law that the legislature while acting within the constitutional field of its operation cannot be controlled by the courts. The judgment of the courts cannot be substituted for the judgment of the legislature. If the legislature desires to appropriate an excessive or unreasonable amount for constitutional purposes, the courts cannot interfere. There is no restriction in our constitution on the power of the legislature to appropriate any amount for any public purpose, and there is no...
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Manning v. Sims
...not connected with the performance of official duties, but of a purely personal and individual character.' In State, ex rel. v. Turner, 117 Kan. 755, 233 P. 510, 511, it is 'All legislative expenses may be properly paid. The expenses that may be paid are not those that are incurred by a mem......
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Manning, Commissioner of Finance, v. Sims
...not connected with the performance of official duties, but of a purely personal and individual character." In State, ex rel. v. Turner, 117 Kan. 755, 233 P. 510, 511, it is "All legislative expenses may be properly paid. The expenses that may be paid are not those that are incurred by a mem......
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