Collins v. Riley ( 1944 )

GIBSON, C. J.

Petitioner, an assemblyman, seeks a writ of mandate to compel the State Controller to approve a claim for traveling expenses, and to draw a warrant for the amount so approved, in accordance with section 352 of the Political Code which, as amended in 1943, provides that “all Members of the Legislature when attending regular, special or extraordinary session of the Legislature shall be entitled to receive in addition to their salaries, their actual necessary traveling expenses. ’ ’ No question is raised as to the form of the claim or as to the necessity or propriety of petitioner’s expenditure of $9.10 for hotel room and meals, and the controller’s refusal to approve the claim is based upon the sole ground that section 352, insofar as it authorizes the payment of “actual necessary traveling expenses” to members of the Legislature, violates section. 23 of article IV of the Constitution which states that such members “shall receive for their services the sum of one hundred dollars each for each month of the term for which they are elected . . . and mileage to be fixed by law, . . . such mileage not to exceed five cents per mile.”

The use of the term “traveling expenses” was perhaps unfortunate, because section 352 cannot be construed as validly increasing the mileage allowance for traveling between a member’s home and Sacramento. However, it has been held that this phrase includes hotel room rent and meals, and it is conceded that the section was intended to provide only for the reimbursement of a member’s actual living expenses while away from home in attendance at a regular, special or extraordinary session of the Legislature. Since all presumptions and intendments are in favor of the validity and constitutionality of legislative acts (People v. Superior Court, 10 Cal.2d 288 [73 P.2d 1221] ; Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620 [91 P.2d 577]; People v. Western Fruit Growers, 22 Cal.2d 494 [140 P.2d 13]; People v. Globe Grain & Mill Co., 211 Cal. 121 [294 P. 3] ; Martin v. Riley, 20 Cal.2d 28 [123 P.2d 488] ; Rainey v. Michel, 6 Cal.2d 259 [57 P.2d 932, 105 A.L.R. 148]), and since such acts “will be given a construction consistent with validity if at all possible” (People v. Globe Grain & Mill. Co., supra), it must be presumed that the Legislature did not intend to increase the mileage allowance but only to provide reimbursement for a member’s actual living expenses when attending a session of the Legislature. No question is raised as to the propriety of other provisions of section 352 regarding the expenses of other officers, and respondent’s objections are directed solely to the constitutionality of allowing living expenses to members of the Legislature.

The validity of this portion of section 352 depends upon a proper construction of section 23 of article IV, which provides that legislators “shall receive for their services” a stated sum “and mileage . . . not to exceed five cents per mile.” There is no express prohibition against the allowance of or reimbursement for other expenses, but the respondent contends that under the doctrine of expressio unius est ex-clusio alterius, since the Constitution specifies two items which may be allowed, any other allowances are invalid. This argument overlooks the fact that our Constitution is not a grant of power but rather a limitation or restriction upon the powers of the Legislature (In re Madera Irr. Dist., 92 Cal. 296 [28 P. 272, 675, 29 Am.St.Rep. 106, 14 L.R.A. 755]; Macmillan Co. v. Clarke, 184 Cal. 491 [194 P. 1030, 17 A.L.R. 288]; People ex rel. Smith v. Judge of the Twelfth District, 17 Cal. 547; Sheehan v. Scott, 145 Cal. 684 [79 P. 350] ; Fitts v. Superior Court, 6 Cal.2d 230 [57 P.2d 510] ; Mitchell v. Winnek, 117 Cal. 520 [49 P. 579]) and “that we do not look to the Constitution to determine whether the Legislature is authorized to do an act, but only to see if it is prohibited.” (Fitts v. Superior Court, supra.) If there is any doubt as to the Legislature’s power to act in any given case, the doubt should be resolved in favor of the Legislature’s action. Such restrictions and limitations are to be construed strictly, and are not to be extended to include matters not covered by the language used. In section 23 the only restrictions are on the amount to be allowed for services ($100 per month) and on the amount for mileage (not to exceed five cents per mile), and the doctrine of expressio unius cannot be relied upon to support or incorporate. other or additional restrictions. As a matter of fact, if the doctrine of expressio unius is applied to section 23 the effect must be to uphold the act of the Legislature. The proper construction of section 23 is that the provisions for payment of $100 per month and mileage “not to exceed five cents per mile” are limitations upon the amounts which may be allowed for the purposes specified. Hence, since this portion of section 23 is not a grant of power, but a limitation, and since only two restrictions are mentioned, the doctrine of expressio unius can only operate to exclude additional limitations, thereby leaving the Legislature free to act. This principle was recognized in the early case of California State Telegraph Co. v. Alta Telegraph Co., 22 Cal. 398, which involved the constitutionality of an act granting an exclusive right to a telegraph line between two cities. The court first laid down the basic rule “that it is competent for the Legislature to exercise all legislative powers not forbidden by the Constitution, or delegated to the National Government, or prohibited by the Constitution of the United States; and that an Act of the Legislature is to be held as void only when its repugnance to the State or National Constitution is clear beyond a reasonable doubt.” After calling attention to constitutional provisions prohibiting the Legislature from conferring the special privilege of banking or issuing paper money, or from creating a body with corporate privileges by special law except for municipal purposes, the court said (p. 424): “These are all constitutional limitations upon the power to grant franchises, and it is clear they do not prohibit the granting of the privilege vested by this act. From the fact that no other limitations are imposed, it is evident that it was the intention to leave the Legislature free to exercise its discretion in all other cases.”

It is also contended that the allowance to each legislator of $100 per month and mileage is an allowance “for their services” and that the granting of actual expenses for subsistence constitutes an improper increase in the compensation provided for by section 23 of article IY. This contention, however, cannot be upheld, since the state’s repayment of such expenses is not the giving of additional compensation, but merely a reimbursement to the legislator for actual cash outlays necessarily incurred for maintenance while away from his home in the performance of his duty. Accordingly, it has been held that “traveling expense” is not compensation for services. (Kirkwood v. Soto, 87 Cal. 394 [25 P. 488].) However, there is conflicting language in County of Placer v. Freeman, 149 Cal. 738 [87 P. 628], which involved the validity of payment to a county supervisor for traveling expenses contracted while acting ex officio as road commissioner. At the time the expenses were incurred, and also when the claim was paid, there was no provision in the County Government Act authorizing reimbursement for such expenses, and it was therefore held that the payment was improperly made. The County Government Act being one of delegation and not one of limitation, the payment of such expenses must find support in an express or implied grant of power. Since there was no provision of law authorizing allowance for such expenses, the court rightly held the payment thereof was improper. The County Government Act, however, was subsequently amended to provide for the payment of such expenses and, in discussing the effect of the amendment, the court used language implying that the allowance for expenses amounted to an increase in compensation. This discussion was not necessary for the decision, and contains language contrary to the holding in Kirkwood v. Soto, 87 Cal. 394 [25 P. 488], which was not cited. Any statement in the Freeman case in conflict with the views expressed herein is hereby disapproved. The Freeman case was relied upon in County of Santa Barbara v. Rucker, 35 Cal.App. 676 [170 P. 860], which involved a statute increasing a road commissioner’s per diem allowance and providing for the payment of actual traveling expenses. The court quoted from the Freeman case and then said, “It would be inconsistent with that decision to say that a statute newly providing for reimbursement of expenses, in addition to compensation previously allowed for his services, is not an increase of the officer’s compensation.” Accordingly, it was held that the payment of such traveling expenses was in violation of article XI, section 9, of the Constitution. Any language in the Rucker case inconsistent with our decision here is also disapproved for the reasons given.

When an officer is required to travel in order to perform his duty, the payment of his actual necessary living expenses while away from home is a proper item of state expense and, unless expressly forbidden by the Constitution, it is a proper exercise of legislative authority to provide for the officer’s reimbursement. The mere fact that such an officer is given a stated amount as compensation for his services cannot transform into additional compensation the allowance of his actual necessary living expenses while traveling on state business; the allowance, actually and legally, remains nothing more than a reimbursement for expenditures made necessary by reason of his office. Had there been any intention that the compensation for services should include such living expenses, it would have been easy to express that intention in section 23. In the absence of any such expressed intention, the specified limitations on the Legislature’s power must be strictly construed and not extended beyond their normal ordinary meaning. The fact that the Legislature has not hitherto made any provision for the reimbursement of legislators does not compel a holding that there has been a contrary construction by the Legislature, since, if it has a right to act, the mere failure to act cannot impair that right, nor can it be held to amount to a contrary construction.

There are decisions of other states holding invalid acts providing for the reimbursement of public officers for traveling expenses. Some can be distinguished as being based upon different constitutional language; others, it must be conceded, are in conflict with the reasoning contained herein and while they may be persuasive authority they are contrary to Kirkwood v. Soto, 87 Cal. 394 [25 P. 488], and cannot be reconciled with the settled principle that our state Constitution is not a grant but a limitation of powers.

The most recent cases we have found on this subject are Peck v. State, 63 Idaho 375 [120 P.2d 820], and State v. Yelle, 7 Wn.2d 443 [110 P.2d 162], In the Peck case there was no express grant of subsistence expenses but merely an appropriation for such expenses, and "it was held that if the act was a grant to the present members of the Legislature, the appropriation would not be available to future legislators and hence the act as so construed would be void as special" legislation. The Yelle case involved the validity of an act appropriating money “for the actual and necessary expenses of the members of the Legislature, actually expended by them for subsistence and lodging while absent from their usual places of residence in the service of the state.” The related constitutional provision provides that each member “shall receive for his services five dollars for each day’s attendance during the session and ten cents for every mile he shall travel. ...” The court upheld the validity of the act upon the ground that the reimbursement for living expenses did not constitute an increase in compensation.

The respondent’s demurrer to the petition is overruled and, as the attorney general concedes that there is no issue of fact, it is ordered that a peremptory writ of mandate issue requiring the respondent to approve petitioner’s claim and to draw a warrant for the amount so approved.

Shenk, J., Traynor, J., and Sehauer, J., concurred.