16 Wis. 337 | Wis. | 1863
By the Court,
Mandamus to compel the respondent, as treasurer of the state, to pay to the relator the sum of forty dollars, which he claims to be due him as a per diem allowance for attendance as a member of the legislature. An alternative writ having been issued and served, the case now comes up on motion for a peremptory writ founded on an agreed statement of facts which may be stated as follows: The legislature of 1862, of which the relator was a member of the assembly, by joint resolution adopted on the 28th day of March, resolved that the two houses should adjourn on the 7th day of April, and take a recess until the 3d day of June, and that no member or officer of either house (except such members of joint committees as might be specially authorized to continue their labor during the recess) should receive, or be
It was also admitted that the relator was not in actual attendance or engaged in the discharge of his duties as member during the recess, though the relation avers that he “ was ready and willing to do any business devolving upon him as such member.” The first objection taken is, that the certificate is irregular, that it does not state facts, or set forth the number of days that the relator, in whose favor it was given has attended, as required by section twelve, chapter nine, of the Revised Statutes. It is no doubt defective in this particular, but we propose to go directly to the merits of the application and to consider whether the relator is entitled to any compensation under section 21, article 4, of the constitution. “Each member of the legislature shall receive for his services, two dollars and fifty cents for each days attendance during the session, and ten cents for each mile he shall travel in going to and returning
The relator’s right to compensation claimed, obviously turns upon the meaning of the words “ each days attendance ” as used in this section. Upon this subject we cannot express our views more clearly than by adopting the language of the supreme court, of Alabama, in a case involving precisely the same question under the code of that state, Ex parte, Pickett 24 Ala., 95. The court say: “ It could never have been intended that the members of the legislature should receive pay for those days only, on which they were actually engaged in the business of legislation, and neither the language employed nor the purposes of the statu'te would force such a construction upon us. A member may be engaged on the 'general assembly during periods of temporary cessations of legislative functions by the respective bodies; and the per diem compensation was intended as a remuneration for the services of the members as well as to provide for their expenses during the period they were required to be absent from their homes, in attending to the duties ‘of legislation, as those duties are usually and ordinarily performed. And the object of limiting this compensation to each days attendance was, to secure on the part of the member, the performance of legislative duty during those days which the house to which he belonged, deemed necessary to devote to the business of legislation. It was never intended that the members of the legislature should not receive pay for Sundays or pending temporary adjournments upon holidays, or on occasions of the death of a member. The practical construction of the law, from the organization of the government to the present time has been otherwise, and we have no disposition to depart horn it. These are not regarded as permanent cessations in the business of legislation, but in the nature of adjournments from day to day when in legal contemplation, the business is progressing. Indeed it may often hap pen that a temporary adjournment for a few days may tend to
The motion must accordingly, be denied.