183 N.W. 852 | N.D. | 1921
Lead Opinion
STATEMENT
The relators seek to compel the State Auditor to issue certain warrants. They have appealed from an order sustaining a demurrer to the petition for mandamus.
This petition alleges, in part, that on January 29, 1921, the House of Representatives adopted a resolution for the appointment of a special House committee to consider an audit of the state bank and state industries and to secure such information and data as was desirable; it empowered the committee to procure such legal assistance, such accounting experts, and such other expert and other aid and assistance as the committee should deem necessary and advisable, and granted further, to such committee, the power to summon witnesses and take testimony; that, pursuant to such resolution, a committee of nine members was appointed by the Speaker; that it thereafter organized and employed the relator Wattam as its reporter, and the other relators as stenographers, to aid and assist in the investigation; that such relators qualified, took the same oath of office as provided for legislative employees, and performed the work assigned to them by the committee; that, on March 4, 1921, this committee returned to the House its report, including a transcript of the testimony taken, the minutes of the meetings had, and a certified statement showing the persons employed and their compensation
The Senate did not concur in the resolution appointing the audit committee nor in the resolution adopting the report and approving the expenses incurred.
CONTENTIONS
The, petitioners, the appellants herein, contend that under the Constitution (§ 48) each house-possesses in addition to the specific powers mentioned in the Constitution, all other powers necessary and usual in the Legislative Assembly of a free state; that each house accordingly possesses inherently full and ample power to function as a branch of the Legislative Assembly, to appoint committees, to gather information, and to carry on investigations and other work incident to the work of the legislative body; that a committee of such legislative branch, properly appointed, may conduct the proceedings necessary; that it may incur expenses properly a charge against the funds of the state as though they had been contracted by the House, subject only to the constitutional limitation that there must exist an appropriation therefor; that neither prior
The respondent maintains that the petition does not affirmatively show the appointment or the existence of the committee for a proper legislative purpose; that there exists neither constitutional nor statutory authority for the appointment of the relators as employees of such committee and for the payment of their salaries and expenses as such; that, pursuant to the Constitution, there exists neither express nor implied power for one branch of the Legislative Assembly to hire employees and to pay for their services, in the absence of legislative act or the concurrence of the other branch of the assembly; that it was competent and proper for the Legislative Assembly to provide specifically for legislative officers and employees and for their compensation; that it has so done pursuant to § 34, C. L. 1913; that § 35, C. L. 1913, does not permit the employment of stenographers, clerks, reporters, expert accountants, and lawyers by a committee appointed by the House; that, so far as § 35, C. L. 1913, delegates to the House the right to hire employees other than those mentioned in § 34, it must be construed to relate to employees of the same class, and not to delegate the further authority to a committee appointed by the House the power to appoint such employees. That furthermore, pursuant to § 42, C. L. 1913, the expenses of an investigating committee are payable only when authorized by the entire Legislative Assembly.
DECISION.
The questions presented by the contending parties are res integra in this jurisdiction. To what extent is the power of one branch of the Legislative Assembly, wlhen acting alone and without the concurrence of the other, restricted by the Constitution, or subservient to legislative en
Section 47 of the Constitution provides that each house shall be the judge of the election returns and qualifications of its own members. Section 48 provides that each house shall have the power to determine the rules of proceeding and punish its members or other persons for contempt or disorderly behavior in its presence and to protect its members against violence, the offers of bribes or private solicitation, and with the concurrence of two-thirds, to expel a member and shall have all other powers
Upon these constitutional provisions, accordingly, the question arises of the authority of one branch of the Legislative Assembly, as a constitutional power, to select its employees, and determine their compensation. It is to be noted that express power in the Constitution is not granted to each house to appoint of designate its own officers and employees and to fix their salaries. Neither is there any restriction in the Constitution upon appointment of such employees or the determination of their salaries. Some state Constitutions expressly provide for and restrict the employees and their salaiies. See James v. Cromwell, 129 Ky. 508, 112 S. W. 611; Walker v. Coulter, 113 Ky. 814, 68 S. W. 1108. Some Constitutions directly authorize each branch of the Legislative Assembly to choose its own officers. Tenny v. State, 27 Wis. 387; State v. Guilbert, supra. Our sister state of South Dakota has an express constitutional provision granting authority to each house to choose its own officers and employees and fix their pay, except as otherwise provided in the Constitution. Article 3, § 9, Const. S. D. The only provision of our Constitution concerning the officers of the Legislative Assembly and their compensation is § 45, which provides that each member shall receive as compensation $5 per day and 10 cents per mile of necessary travel. The power of each house, therefore, to select its public employees and determine their salaries must exist impliedly or inherently under the provisions quoted. Ordinarily the powers granted to each house in the Constitution are not to be extended by construction; in other words, the maxim is frequently applied, “Ex-pressio unius est exclusio alterius.” State v. Guilbert, supra; Ex parte Caldwell, 61 W. Va. 49, 55 S. E. 910, 912, 10 L. R. A. (N. S.) 172, 11 Ann. Cas. 646. Thus a constitutional provision granting to each house specific powers concerning contempt is also a limitation upon the powers to punish for contempt. See Kilbourne v. Thompson, 103 U. S. 168, 26 L. ed. 377; 386, 389. See 7 Ann. Cas. note 877. So a constitutional provision providing that a Legislature may punish by imprisonment any person not a member obstructing its proceedings places a limitation upon its power to punish for contempt. Ex parte Wolters, 64 Tex. Cr. R. 238, 144 S. W. 531, 583, 585) Ann. Cas. 1916B, 1071. If the provision of § 48 of the Constitution properly means that each house has all other powers necessary and usual in each branch of a Legislative Assembly, much force
In specific language the Constitution grants to the Legislative Assembly the exercise of legislative power. This is an express grant of power. 'When expressed, this legislative power is paramount, unless contrary to constitutional provisions. It must be apparent that this legislative power extends to the appointment of officers and employees of each branch of the Legislative Assembly and to the fixing and determination of their salaries unless there be a constitutional provision to the contrary. Accordingly it would appear that the voice of the sovereign will, expressed either in the constitution or in legislative enactment pursuant to express
The fact that different legislative bodies in this state ■ have at different times in their separate branches provided by resolution for increase in the number of employees or in the amount of pay or have otherwise provided for the payment of expenses such as in a contest case does not furnish a legislative construction in favor of the possession of inherent powers in each branch of the Legislative Assembly contrary to the expression of the legislative enactment duly enacted by the Legislative Assembly. The legislative enactments themselves furnish a criterion upon legislative construction and the acts of individual branches of the Legislative Assembly in connection therewith furnish further legislative construction in support of such legislative enactments. The questions therefore are now presented: (i) Was there a legislative enactment covering, the employment and the payment of the employees of this special House committee? and (2) Was there a legislative enactment providing for an appropriation and the method of disbursing such appropriation in connection with such employees? There can be no question that there is a legislative act covering the officers and employees of both branches of the Legislative Assembly, § 34, C. L. 1913. There can be no question again that under § 35, C. L. 1913, no employees of the Legislature other than those provided in § 34 shall be paid except by a resolution of the Senate or of the House. This implies that there may be other employees, and also -that their pay may be fixed by a resolution of either branch. This section therefore does not negative the right to employ additional help. The contention of the respondent that the resolution shows that the investigating committee was not for proper legislative purposes should be denied, because it is to be presumed that such committee would function and has functioned as a proper legislative investigating committee until the contrary be made to appear. The contention likewise of the respondent that the committee itself employed this help, and that this legislative power could not be delegated to a committee, is answered by the two resolutions of the house which authorized the committee and fully ratified all of its actions both in the investigation had and in the help employed and expenses incurred. The crucial question remains, however, whether there exists a legislative enactment appropriating moneys for the expenses of such investigating committee, and providing the method by
The action of the trial court in sustaining the motion to quash was therefore proper, and its order should be affirmed.
Dissenting Opinion
(dissenting). I dissent from the conclusions reached by the majority for the reason that in my opinion the applicable legislative enactments have not been properly construed. I express no opinion on the constitutional question discussed, as I do not deem it involved. In order to set forth clearly the basis for this difference of opinion, it is necessary to briefly state the substance of the provisions of the statutes relating to the payment of legislative expenses. Section 34, C. L. 1913, enumerates the officers and employees of the Senate and House of Representatives ol the Legislative Assembly. Section 35 reads:
“No employees of the Legislature other than those provided by § 34 shall be paid, except by a resolution of the Senate or House of Representatives.”
Prior to the time when the Legislature adopted the policy of passing a budget or general appropriation bill biennially, provision was made for a standing appropriation covering legislative expenses as follows (§ 35, R. C. 1905) :
“There is hereby appropriated out of any money in the state treasury, not otherwise appropriated, as a standing and continuing appropriation, such a sum as may be necessary to pay the mileage and per- diem of members and the salaries of the officers and of the employees of the Legislative Assembly; and the State Auditor is authorized to draw his war'rants on the State Treasurer for such sums as may from time to time become due to such members and employees.”
“This act shall be effective from January 1st, 1913, for' the reason that at this time there appears to be no appropriation to cover the expense of the Legislative Assembly outside of printing and mileage, and ¡Her diem of members and per diem of officers and employees. The lack of an a23propriation leaves the State Auditor without authority to open an account for legislative expense, and as it is important and necessary that expenses of this kind should be kept in a separate account for convenience for reference, this act shall be effective from January 1st, 1913, so that it may cover the 13th Legislative Assembly now in session.”
The legislative expense of that year, 1913, was 23aid under the authority of § 35 as so amended; there being no provision in the general appropriation law covering the matter. All expenses of the character named have been paid out of this standing appropriation, and reference to the files in the Auditor’s office discloses that among the expenses so paid upon vouchers approved by the officers of the House alone were expenses of the character of those involved in this case, 'incurred in connection with a certain bribery investigation involving only the House. In 1915 and subsequent legislative years there was included as a subdivision in the general appropriation bill specific appropriations covering the matters pre
“Subdivision 57:
The Fifteenth Legislative Assembly.
For the payment of salaries and mileage of members, per diem of officers and employees, printing, and miscellaneous expenses and supplies, for the Fifteenth Legislative Assembly, the following sums:
Mileage and per diem of members — .........................................$ 57,000 00
Per diem officers and employees ......................................... 20,000 00
Printing ......................T............................................................. 30,000 00
Miscellaneous expenses and supplies........................................ 5,000 00
Total ................................................................................$112,00000”
Substantially the same, differing as to amounts, will be found in subsequent session laws. See chap. 24, subdss. 54, Session Laws of 1917; chap. 16, subdss. 46, Session Laws 1919; chap. 5, § 25, Laws of Special Session 1919. From this it will be seen that the section which is made the basis of the decision in the majority opinion has practically been a dead letter since the inauguration in 1913 of the practice of passing a general appropriation bill (made applicable to the Legislature in 1915). In other words, § 35, R. C. 1905 ’(§ 42, C. L. 1913), has never served any purpose except as a standing appropriation, and it can scarcely continue to serve this purpose while specific appropriations are made covering the same items.
According to the majority opinion the relators are legislative employees, but yet it is held that, since they were assigned to work with an investigating committee, they can receive no compensation for their services because the committee expenditures have not been authorized by the Legislative Assembly, meaning the House and Senate combined. It is said that this conclusion is rendered necessary by the language of § 42, C. L. 1913, which appropriates money to pay “the expenses of investigating committees when authorized by the Legislative Assembly.” The construction adopted depends for its validity upon the answers to two questions: First, what restrictive force should be given to language contained in a standing appropriation after it has been in effect superseded by specific appropriations? and, second, what is meant by the expression “authorized by the Legislative Assembly” ?
It is apparent that the majority opinion gives effect to this standing
“* * * It is the intent hereby to enact an exclusive general appropriation bill, and to repeal each and every act and all parts of acts now existing which appropriate or purport to appropriate money for any of the offices, officers, purposes and things set out in § 3 hereof in so far as the same conflicts therewith, or relate to appropriations for the same matters or purposes provided for therein.”
To like effect see chap. 24, § 4, Session Laws 1917, chap. 16, § 3, Session Laws of 1919, and chap. 5, § 26, Laws of Special Session, 1919.
That the items embraced in a general appropriation bill supersede standing appropriations for the same or kindred objects and effect an implied repeal, see State ex rel. Wallace v. Jorgenson, 34 N. D. 527, 159 N. W. 35. Under the decision referred to and the subsequent specific appropriations for legislative expenses, there is clearly no standing appropriation for the expense of legislative investigations as such. And such expenses could not be paid even if authorized by both branches of the Legislative Assembly except as they are payable from the items designated in the general appropriation bill as “per diem of officers and employees, printing, and miscellaneous expenses and supplies.” See chap. 5, § 25, Laws Special Session, 1919.
Coming now to the question upon which the majority opinion is based: What is meant by the expression “authorized by the Legislative Assembly”? It will be noticed that § 42, C. L. 1913, before as well as after its amendment, was a standing appropriation for the payment of the members, officers, and employees “of the Legislative Assembly.” Now, strictly and literally speaking, there is no such class of employees authorized to be employed as employees of the Legislative Assembly. Those employed are either employees of the Senate or the House of Representatives. They are not only specifically referred to as such in § 34, but § 35, C. L. 1913, expressly authorizes either house by its own resolution to employ
It is a safe assumption that legislative business has never been carried on in this manner, and it is doubtful if during the eight years that this legislation has been on the statute books there has been a single legal payment of expenses made under it — that is, legal according to the construction of the majority opinion. I am aware of nothing in our legislative history that furnishes a basis for such a conclusion as a practical construction of the legislation touching this subject-matter, and it certainly makes one house dependent upon the other to an extent heretofore uncontemplated. All the legislation clearly indicates that each house is to act independently in the performance of its legislative functions, but under the construction of the majority opinion in this case each can tie the hands of the other at will. The purse strings are admittedly in the hands of the Legislature, and both houses combined, through appropriation bills, may exercise a wholesome restraint upon the powers of each house to incur expenses. But where the appropriation is made and either house has proceeded in good faith, as must be assumed, to exercise the powers conferred upon it and has incurred expenses within the appropriation in so doing, in my opinion it is more consonant with the dignity of the state to meet its just obligations than to seek to justify a refusal by a restricted construction of legislative enactments never before given such an application.
In my opinion the compensation of the relators in the instant case should be paid as an item of expense “authorized by the Legislative Assembly” within §.42, C. L. 1913, for meeting which there is an existing appropriation. The case of the relators is even stronger than this. They are legislative employees. It must stand admitted, as previously pointed out, that one house does not need the assent of the other for the hiring of additional employees. This is according to the express language of the statute. Section 35, C. L. 1913. The only reason assigned by the majority for not directing payment to these employees is that they were assigned to duty with an investigating committee which functioned without the assent of the Senate. It is respectfully submitted that the relators do not lose the character of legislative employees by reason of being assigned to work with an investigating committee. Clearly the writ should issue.
Concurrence Opinion
(concurring in result). The relators applied for a writ of mandamus to compel the State Auditor to issue certain warrants. In the lower court a demurrer was interposed to the petition, and a motion made to quash it. The motion was by the trial court sustained. Appeal was taken to this court, and the trial court’s order, by-the main opinion, is affirmed, and we concur in the result at which the main opinion has arrived.
