Ferris v. Auditor General , 318 Mich. 528 ( 1947 )

Plaintiff, Chester A. Ferris, is a resident of the city of Detroit and is a duly and legally elected member of the house of representatives of the State of Michigan. He filed a petition in the Supreme Court for a writ of mandamus commanding defendants, the auditor general and the treasurer of the State of Michigan, to honor and pay his certified account of expense in accordance with the provisions of Act No. 5, Pub. Acts 1947.

Upon the filing of the mentioned petition we issued an order to show cause. Defendants filed an answer and return to the order to show cause and assert that the act in question offends article 5, § 9, of the State Constitution and is void for that reason.

Plaintiff relies upon the following sections of the act in support of his petition:

"SEC. 5. Each member of the legislature and the president of the senate shall receive, at the expense of the State, 1 copy of the laws, journals, and documents of the house of which he is a member. He shall, while absent from his usual place of residence while in attendance at regular or extra sessions of the legislature and while in the discharge of his official duties in the service of the State, be reimbursed for actual expenses incurred for room and meals in the same amounts as are paid to State officers, for like expenses while absent on business of the State, not to exceed $7.50 per diem.

"SEC. 6. The expense accounts of the members of the legislature and the president of the senate shall be paid by the auditor general on vouchers approved and submitted by the secretary of the senate and the clerk of the house of representatives, out of appropriations made for the expenses of the legislature in accordance with the accounting laws of the State."

Phillip C. Kelly, having been permitted to intervene as defendant, urges that where compensation and expenses of members of the legislature are fixed by the Constitution of the State of Michigan, such compensation or expenses may not be increased by an act of the legislature, the same being contrary to article 5, § 9, of the Michigan Constitution (1908), which provides:

"The compensation of the members of the legislature shall be three dollars per diem during the term for which they are elected, and they shall receive no further compensation than as specified in this section for service when the legislature is convened in extra session. Members shall be entitled to ten cents per mile and no more for one round trip to each regular and special session of the legislature by the usually traveled route. Each member shall be entitled to one copy of the laws, journals and documents of the legislature of which he is a member, but shall not receive, at the expense of the State, books, newspapers or perquisites of the office not expressly authorized by this Constitution."

The attorney general, while representing the auditor general and the State treasurer, has filed a brief in which he urges that the act in question is a valid exercise of legislative power and not in violation of the Constitution; that the expression "compensation for services" in the Constitution does not prevent or inhibit the legislation which is designed to reimburse members of the legislature for necessary subsistence expenses while they are away from their homes and in the service of the State; and that the allowance in question is not a "perquisite of the office" in support of which he relies upon Ware v. City ofBattle Creek, 201 Mich. 468 (L.R.A. 1918 E, 673), and State, exrel. Harbage, v. Ferguson, 68 Ohio App. 189 (36 N.E. [2d] 500).

In the Ware Case, supra, the ordinance of the city of Battle Creek provided for a salary for the city attorney and, also, provided that he should not be entitled to any fees or perquisites of office in addition to his salary. At a later date the common council adopted a resolution providing for the payment of $40 per month for office expense. Plaintiff, as city attorney, brought action to enforce such payment. The trial court entered judgment against plaintiff. Upon appeal we quoted with approval the definition of "perquisite" from Bouvier's Law Dictionary: "Perquisite means something gained by a place or office beyond the regular salary or fee." In holding that the allowance for rent of the office which was actually used by the city attorney in the discharge of his official duties was not a perquisite of office within the meaning of the ordinance, we said:

"The word ``perquisite' means some emolument or profit beyond the salary which was paid to the city attorney, and can not be said to mean moneys which were allowed him for expenses, because there was no profit or emolument to him in the allowance for office rent, which he had to disburse."

In the case of State, ex rel. Harbage, v. Ferguson, supra, the court of appeals of Franklin county, Ohio, held that a statutory provision that each member of the legislature shall receive travel allowance of five cents a mile from and to his place of residence once a week during sessions in addition to his salary is not void as violating a constitutional provision that such members shall receive fixed compensation prescribed by law and no other allowance as such travel allowance is reimbursement for travel expenses. In the opinion it is stated that "to invalidate a statute the repugnancy between the statute and the Constitution must be plain, clear, substantial, palpable, strong, manifest, obvious, necessary, free from doubt and incapable of a fair reconciliation." The court also made the following observations:

"It frequently happens that one is engaged at a fixed salary or compensation, in addition to which he has an allowance for expenses. If such an allowance goes to increasing the fixed salary, then we would be required to say that it is forbidden, as, for instance, there could be no allowance made for hotel and living expenses, and such an item would seem to fall within the intention of the drafter of the constitutional provision, when it was provided that there should be no other allowance in the payment of postage or ``otherwise.'"

The Ware Case is not authority for the allowance of personal expenses, such as room, meals and other incidentals. Nor can it be said that the Ferguson Case is such authority, as the court clearly indicated that hotel and living expenses would fall within the prohibited constitutional provision.

By the great weight of authority there is a distinction between legislative or governmental and personal expenses. Those expenses incurred in the performance of official duties as in the WareCase are allowable, while purely personal expenses are considered as perquisites of office, and being such are forbidden by constitutional provision.

In State, ex rel. Attorney General, v. Turner, 117 Kan. 755 (233 P. 510), it is said:

"All legislative expenses may be properly paid. The expenses that may be paid are not those that are incurred by a member of the legislature because he is at the capital city; they are those that are incurred by him in the performance of his duties. They are legislative expenses, not personal expenses. The distinction between expenses that are legislative and those that are personal is that legislative expenses are those that are necessary to enable the legislature to properly perform its functions, while those that are personal are those that must be incurred by a member of the legislature in order to be present at the place of meeting — expenses for his personal comfort and convenience which have nothing to do with the performance of his duty as a member of the legislature. Personal expenses are those incurred for rooms, meals, laundry, communications with their homes, and other things of like character."

Other jurisdictions in harmony with the above statement are recorded in the following decisions: Dixon v. Shaw,122 Okla. 211 (253 P. 500, 50 A.L.R. 1232); Gallarno v. Long,214 Iowa, 805 (243 N.W. 719); State, ex rel. Banker, v. Clausen,142 Wn. 450 (253 P. 805); Ashton v. Ferguson,164 Ark. 254 (261 S.W. 624); Jones v. Hoss, 132 Or. 175 (285 P. 205); Peay v. Graham, 162 Tenn. 153 (35 S.W. [2d] 568).

The act in question provides that a member of the legislature while in the discharge of his official duties at a session of the legislature shall be reimbursed for actual expenses incurred for room and meals, not to exceed $7.50 per diem. Such an allowance for board and room, if permitted by the act here under consideration, would thereby become a perquisite of the office and as such is prohibited by the Constitution. It, therefore, follows that the act in question in unconstitutional for the reasons above stated.

The petition for a writ of mandamus is denied, but without costs as the construction of a public act is involved.

CARR, C.J., and BUTZEL, BUSHNELL, BOYLES, NORTH, and DETHMERS, JJ., concurred with SHARPE, J.