Ex parte Pickett , 24 Ala. 91 ( 1854 )

CHILTON, C. J.

This is an application by Richard O. Pickett, a member of the House of Representatives, for a writ of mandamus against William Garrett, the Speaker of said House, requiring him, as such Speaker, to certify to the Comptroller of Public Accounts the amount insisted by the petitioner to be due to him for mileage, or per diem, or both, which accrued to him between the period of the adjournment of the General Assembly on the 20th December, 1853, and its reassembling on the 9th January, 1854.

We have had some difficulty as respects the jurisdiction of this court of original applications like the present; but, as the facts set forth in the petition, (and which are admitted by the Speaker,) very clearly show that, if the petitioner have any other remedy, which is questionable, that remedy may be thwarted, we have determined, under the peculiar circumstances of the case, to entertain jurisdiction of the motion. The case of The State, on the relation of the Attorney General v. Porter, 1 Ala. R. 688, although not directly in point, is strongly persuasive in support of our power to grant the relief prayed for.

The question to be decided is, whether, if the General Assembly, by a joint resolution of both houses, pending its regular session, adjourn on the 20th December, 1853, to meet again on the 9th day of January, 1«54, the members who go home and return are entitled to mi.cage, or per diem, or to both.

By the 43d section of the Code, “ the President of the Senate and the Speaker of the House receive six dollars, and the other members four dollars, for each day’s attendance ; and are allowed four dollars for every twenty miles travelling to and from the General Assembly ; estimating the distance by the direct mail route, if any, and if not, by the land route usually travelled.”

The 44th section provides, that, “ If any member is detained by sickness, after leaving home, in coming to, or is unable to attend the House after he arrives at the seat of government, he is entitled to the samedady pay as an attending member.

The 45th section declares, that “ The compensation duo to the members and officers of the General Assembly, must be certified by the President and Speaker respectively, to the Comptroller of Public Accounts, who must issue his warrant therefor ontheStato treasury.” Solaras the right to per diem corapensation is involved, it must turn on the meaning of the words “ each dav’s attendance,” as used in the 43d section. 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 statute, would force such a construction upon us.

A member may b e engaged in attendance on the General Assembly, during periods of temporary cessations of legislative functions by the respective bodies; and th e 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 in limiting this compensation to each day’s attendance, was, to secure on the part of the member, who was not within the exemptions provided for by section 44, 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 from it. These are not regarded as permanent cessations In the business of legislatim, but in the nature of adjournments from day to day, when, in legal contemplation, the business is progressing. Indeed, it may often happen, that a tern-' porary adjournment for a few days may tend to facilitate the business, since the committees may thus be afforded time to consider <.»£ and mature the matter of bills and resolutions referred to them. But when, as in the case before us, there is an adjournment for near three weeks — for such a period of time, as to afford a reasonable inference that it was designed, not to facilitate the business of the session, but to operate a cessation of it for the given period, that the members may return to their respective homes — it would appear absurd to say that a member was in attendance upon the General Assembly, when it was not convened, and could not be, until the period which it had fixed for re-assembling had arrived. Thus much upon the question as to the per diem.

We come next to consider the right to mileage. By the amendment to the constitution, the members of the General Assembly are elected biennially; and, according, to section 32 of the Code, “ The regular sessions of the General Assembly are held on the second Monday in November, 1853, and every two years thereafter.” As the law now stands, there can be but one regular session every two years, and this session is closed when the Legislature adjourns sine die. But the Governor is authorized, by proclamation, on extraordinary occasions, to convene the Legislature, at the seat of government, or at a different place, if that shall have become, since their last adjournment, dangerous, from an enemy, or from contagious diseases ; and if the two houses shall not agree as to the time of adjournment, he may adjourn them to such time as he may think proper, not beyond the day of the next biennial meeting of the General Assembly. — Const. Ala., Ar. 4' § 8, and amendment. Here, then, we have provision for a regular biennial session, and for a special or called session by the Governor.

The constitution is silent as to the power of the Legislature to provide for a special session ; but it is a sound rule of construction, that, vfhije the federal government can exercise no power not delegated by it3 constitution, either in express terms or by necessary implication, the State legislatures may exercise all powers falling within the legitimate scope of legislation not expressly or by implication denied either by the constitution of the State or of the United States. So that we conceive, there is no constitutional objection to the Legislature’s providing, at a regular session, for a special or extraordinary session. Exigencies might arise, which would render the exercise of such power of the last importance to the State ; and we think it too clear to admit of any doubt, that, if the intervening time be so great as reasonably to require the dispersion of the members in going to and returning from such called or special session, whether convened by the Governor, or by an act or resolution of the general session, they would be entitled to mileage. We will not say but that the Legislature may provide for such special session, without the lapse of so much time between it and the regular session as intervened in the case before us. There might be extraordinary emergencies requiring such legislation. Now, it is conceded by all, we believe, that for attendance upon such sessions, the members would be entitled to mileage. What, we ask, is the difference between such session, and the present session after the reassemblage upon the 9th day of January last, as respects the necessity for the members travelling to and from the General Assembly! The length of time between the adjournment and cessation of the business of legislation and the time fixed for re-convening, was so great, as to furnish a reasonable inference that it was contemplated the members should return to their respective homes and constituency. It may have been right and proper that they should so return, to be advised by their constituents respecting their will with regard to important measures before the General Assembly. Be this, however, as it may, we are not permitted to go behind the adjournment, to investigate the causes which led to it. This is a political question, which it was for the Legislature to decide, and with which wo have nothing to do. We must intend that the ground for-adjournment was sufficient, and the period which intervened was of such duration as reasonably to require the members to return home. When, therefore, they were going and returning, they were travelling to and from the General Assembly, within the meaning of the 43d section.

Our opinion, in short, is, that when an act of legislation (and an adjournment is such an act) involves the presumed necessity of the members returning to their constituents, they are entitled to their allowance for such travel, within the meaning of the law. It follows from what we have said, that the members are not entitled to per diem compensation, but are entitled to mileage.

The motion is accordingly granted as to mileage, but denied as to,the per diem..