Tate v. Logan

Decision Date02 June 1961
Docket NumberNo. 39639,39639
Citation362 P.2d 670
PartiesTom TATE, Plaintiff, v. Burton LOGAN, State Budget Director of The State of Oklahoma, Defendant.
CourtOklahoma Supreme Court

Syllabus by the Court

1. Our constitution vests in the Legislature the supreme power to enact laws to meet the needs of the State, and its acts should be upheld unless plainly and clearly within the express prohibitions and limitations fixed by the constitution. There is a presumption that an act is constitutional.

2. In passing upon the constitutionality of an act of the Legislature all pertinent sections of the constitution should be considered together in arriving at a correct interpretation.

3. In construing the constitutionality of a statute, the Supreme Court is not authorized to consider its propriety, desirability, wisdom, or its practicability as a working proposition. Those questions are clearly and definitely established by our fundamental law to a certainty as functions of the legislative department of government. The function of the court is clearly limited to the determination of the validity or invalidity of the Act.

4. It appearing that there is no prohibition or limitation in constitutional provision (in Sec. 21 Article V) for legislators to receive ten cents per mile for every mile of necessary travel in going to and returning from the place of meeting of the Legislature, on the most usual route, in light of the whole section and other constitutional provisions, restricting a determination by the Legislature as to what travel is necessary in going from the legislator's home in his county or district to and returning from the seat of government, House Bill No. 849 of the Twenty-eighth Session of the Oklahoma Legislature of provision that mileage shall be paid each member thereof for trips from his home to the place of meeting of the Legislature and return of a frequency of not to exceed one per week held constitutional.

Original proceeding for writ of mandamus to order and command defendant to recognize, audit, and allow plaintiff's claim for mileage from his home to place of meeting of Legislature and return. Writ granted.

Tom Tate, pro se.

Joseph E. Mountford, Miami, Okl., for plaintiff.

Mac Q. Williamson, Atty. Gen., Fred Hansen, First Asst. Atty. Gen., for defendant.

WILLIAMS, Chief Justice.

Tom Tate, a member of the House of Representatives of the Twenty-eighth Legislature of the State of Oklahoma, plaintiff, in this original proceeding prays for a writ of mandamus to order and command Burton Logan, State Budget Director, defendant, to recognize, audit and allow his claim for mileage for 'necessary travel' from Hominy, his home, to Oklahoma City and return (236 miles). Plaintiff contends such trip was necessary to the performance of his official duties. Defendant denies the existence of authority on his part to allow the claim, Mr. Tate having already been paid mileage for one trip from his home to Oklahoma City and return at the beginning of the present session of the Legislature.

Plaintiff's claim was properly sworn to and was approved by the principal officer of the House of Representatives. Defendant, however, disallowed the claim, because plaintiff had been paid already for one trip.

Preliminary to a discussion of the immediate point involved herein we note that by Section 36 of Article V of the Constitution of Oklahoma, provision is made that 'The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever;' that by Section 26 of such Article 'The members of the Legislature shall meet at the seat of government * * *'; that by provision of Section 1, Title 73 O.S.1951, 'The seat of government and capitol of the State of Oklahoma shall be and is hereby established at Oklahoma City, in the county of Oklahoma, in said state * * *'; that by Section 27 of said Article V, of said Constitution it is specified, 'The Legislature shall hold regular biennial sessions as herein provided, but this shall not prevent the calling of a special session of the Legislature by the Governor.'

Now, to the question in this case. Section 21 of said Article V of our State Constitution provides that members of the Legislature, during either a regular or special session thereof, are entitled to receive in addition to the presently authorized salary and/or per diem:

'ten cents per mile for every mile of necessary travel in going to and returning from the place of meeting of the Legislature, on the most usual route, and shall receive no other compensation.'

In Dobbs v. Board of County Commissioners, 208 Okl. 514, 257 P.2d 802, 803, we said:

'In passing upon the constitutionality of an act of the legislature all pertinent sections of the constitution should be considered together in arriving at a correct interpretation.'

After said Section 21 of Article V was amended by a vote of the people in 1948 the aforesaid mileage provision remained as it had been since statehood. The amendment granted the members of the legislature a salary and increased their per diem.

The Twenty-eighth Oklahoma Legislature shortly before plaintiff's said claim was filed enacted House Bill No. 849, with emergency clause attached effective as of April 7, 1961, the title of which Act is as follows:

'An Act vitalizing Section 21 of Article V of the Constitution of the State of Oklahoma relating to compensation of members of the Legislature; authorizing monthly salary when Legislature not in session; fixing daily pay during sessions and limiting such pay to a certain number of days: limiting authorized mileage pay to one trip each week from members' home to place of meeting of Legislature and return; providing that members living in and elected from the county where Legislature meets shall not be paid mileage; and declaring an emergency.'

In part, as is pertinent to our consideration of the issue now before this Court, such House Bill provides:

'* * * Mileage shall be paid at the rate of ten (10) cents per mile for the number of miles necessarily and conveniently traveled by the most usual and feasible route to be present upon convening of the sessions of the Legislature by such member in each and every trip during each session in going to and returning from the place of meeting of the Legislature; Provided, that the number of such trips shall not exceed one for each week the Legislature is actually in session * * *.'

On February 13, 1961, House Resolution No. 523 was adopted by the Oklahoma House of Representatives. It is as follows:

'A House Resolution stating that it is the policy of the House of Representatives for members to return to their districts on weekends to report to and consult with constituents concerning Legislative matters.

'Whereas, sound legislation requires that each member of the House of Representatives be informed of the views and opinions of his constituents in order to adequately and correctly carry out their will in legislative matters; and

'Whereas, it would be inconvenient and impractical for each constituent to have to come to the Capitol to discuss legislation with his Representative. It is therefore important for each legislator to be available in his home district to personally consult with his constituents on the weekends during the Session.

'Now, therefore, be it resolved by the house of Representatives of the Twenty-eighth Legislature:

'That, it is the policy of the House of Representatives of the Twenty-eighth Session of the Oklahoma Legislature that it is beneficial in the enactment of sound legislation and therefore a necessary part of a legislator's duties for each member of the House to return to his district on the weekends whenever possible during the Session to report to and consult with the constituents concerning legislative matters.'

The question arises as to whether it is for the Supreme Court or the Legislature to determine what is 'necessary travel.'

As above noted broad powers were conferred by the people upon the legislative branch of our government by Article V, Section 36 of the Oklahoma Constitution when the following language was employed:

"The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever." Dobbs v. Board of County Commissioners, 208 Okl. 514, 257 P.2d 802, 806 supra.

In Dixon v. Shaw, 122 Okl. 211, 253 P. 500, 501, 50 A.L.R. 1232, we said:

'Governmental ends under our political system, and the method and expenditures incidental to the proper reaching thereof, are placed in the hands of the sovereign legislature. It represents the will of the people in a degree no less conclusive than a constitutional convention, in all matters not either expressly or by clear implication prohibited by the basic law of the state. No one can call such body, or the members thereof, to account for its or their expenditure of public funds, or other matters brought within its control, save and except the people in their sovereign capacity, unless the power of the courts can be invoked to restrain and prevent the completion of a purpose expressed by such body in violation of the basic law of the state.

'What we have just said brings us to the first proposition announced by the plaintiffs, to the effect that the Legislature is sovereign, and has no limitations as to expenditures, either for its own members, or for other departments of state government, save and except where the Constitution of the state or nation has been fit to place an inhibition. This is so well recognized that it has become all but axiomatic....

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