No. 5396 | Ga. | Jan 14, 1927
Lead Opinion
The judge erred in enjoining the Treasurer of the State from paying mileage as involved in this case.
Judgment reversed.
There is only one question presented in this case: whether the judge of the superior court erred in rendering the judgment sought to be reviewed, which restrained the' Speaker of the House and the President of the Senate from certifying and approving the per diem of the members of the General Assembly at the extraordinary session which convened on March 19, 1926,
Concurrence Opinion
I concur in the result of the judgment of reversal for this reason: Whether the members of the General Assembly are entitled to mileage for attending the extra session of the legislature is a question for determination by that body, and is not a question for judicial determination. Skrine v. Jackson, 73 Ga. 377; 13 C. J. 878, § 381. By law the compensation due to the members of the General Assembly must be certified by the President and Speaker, respectively, upon the report of the auditing committee, to the treasurer, who afterwards shall pay each member who presents his accounts duly audited. Civil Code (1910), § 354. By this statute a method is provided for determining what compensation, including per diem, is due to the members of the General Assembly. This statute establishes a special tribunal for
Dissenting Opinion
dissenting. This case presents a degree of novelty, as is shown by the fact that no case in any State has been found which deals with the precise question. The States differ in their provisions for compensation of legislators, some making special provisions for extraordinary sessions and limiting mileage. Index Digest State Constitutions, 898 et seq. It is certain that it has not previously been the subject of litigation in this State. As I view the principles involved, it is impossible for me to concur in the judgment of reversal, and the importance of the subject is my excuse for presenting this dissent. It is declared by two of the Justices that this is a political question, and therefore that this court has no jurisdiction (citing Skrine v. Jackson, 73 Ga. 377); that a, special tribunal, consisting of the President of the Senate and the Speaker of the House, respectively, upon the report of the auditing committee, have been provided by statute to determine what compensation is due to members of the General Assembly. Civil Code (1910), § 354. The Skrine case dealt with the power of the courts to interfere with legislative power delegated to the ordinary to declare the result in an election in favor of or against a fence. If this were a question of legislative policy of delegating such power, it would fall under the Skrine case; but we are not dealing with the question of whether the legislature should delegate certain powers to the ordinary, nor with the policy of referendum. Such questions are not justiciable. For a full discussion of this question, see Green v. Atlanta, 162 Ga. 641 (135 S.E. 84" court="Ga." date_filed="1926-09-13" href="https://app.midpage.ai/document/green-v-city-of-atlanta-5586012?utm_source=webapp" opinion_id="5586012">135 S. E. 84). At a very early date in the history of this court, when it was' composed of Judges Lumpkin, Warner, and Nisbet, in the case of Beall v. Beall, 8 Ga. 210, the court dealt with the fundamental question of the respective powers and relationships of the three departments of government. It was there said: “Measures, exclusively of a political, legislative, or executive character, are not examinable- by the courts. In such case, the remedy for any real or supposed abuse is solely by appeal to the people, at the elections.” The court also said: “The General Assembly of this State has power to make all
The General Assembly formally passed an act making an appropriation with which “mileage” could be paid. Mileage could not otherwise be paid by the Treasurer. The act is found in Georgia Laws, Extraordinary Session 1926, p. 8, approved April 10, 1926. Petitioner alleges, on information and belief, that the Speaker and the President of the Senate construe the constitution (Civil Code (1910), § 6454) as allowing mileage to members whether or not they actually traveled to and from the extraordinary session, and that they will certify to the Treasurer accordingly; and that, giving such construction, the payments would be unconstitutional. Only the State Treasurer excepted to the judgment rendered by the trial judge. The Treasurer properly desired binding authority for his own protéction. Our constitution declares: “No money shall be drawn from the treasury except by appropriation made by law.” Civil Code (1910), § 6440. Civil Code (1910), § 228 (1), provides that it is the duty of the State Treas
It is significant, too, that neither the constitutional convention of 1865 nor that of 1868 adopted any limitation on or express provision for mileage. The latter (1868) has gone into history as the “black and tan” convention. When the convention of 1877 met, the imperative necessity for safeguards of the treasury was obvious. Article 3, section 9, paragraph 1, of the constitution of 1877 (now Civil Code (1910), § 6454), fixing the limits of per diem and mileage, was adopted by the convention apparently without debate and as a matter of course. Small’s Report, 377, 378. The constitution of 1861 provided as follows: “The compensation of the members and officers of the General Assembly shall be fixed by law, at the first session subsequent to the adoption of this constitution: and the same shall not be increased so as to affect the compensation of the members or officers of the Assembly by which the increase is adopted.” It will be seen that in that instrument there was no separate provision for per diem or mileage, nor was there any restriction as to amount, which was left to be fixed by law. Investigation also discloses that in none of the previous constitutions is there to be found such limitation. The framers of the present constitution had studied and knew all of the previous constitutions; knew the experiences through which the State had gone, and were impressed with the necessity of adding strict limitations upon the power of appropriating public money. In such circumstances every word must be construed as being fraught with meaning and not to have been employed by mere accident. The constitution in terms provides that “mileage shall not exceed ten cents for each mile traveled” (italics mine), which authorizes the payment of an amount not exceeding ten cents for each mile actually traveled. The word “traveled” has in
The court below construed the clause of the constitution to restrict payment for mileage to the number of miles “actually traveled,” and also “actually paid.” In so far as the court construed the constitution to restrict payment to miles “actually traveled,” the judgment should be affirmed. In so far as the construction also limited payment to amounts “actually paid,” the judgment should be reversed.
Concurrence Opinion
concur in the judgment of reversal, being of the opinion that upon a construction of article 3, section 9, paragraph 1, of the constitution of Georgia (Civil Code of 1910, § 6454), members of the General Assembly are entitled to mileage for attendance upon an extra session of the legislature, just as they would be for attendance upon a regular session; and the session in question here being an extraordinary session called by the Governor, they were entitled to receive the mileage to and from their respective homes, whether or not they actually traveled, and that the court below erred in enjoining the payment of the same, and that to this extent the judgment of the trial court should be reversed.