Commonwealth ex rel. Wolfe v. Butler , 1882 Pa. LEXIS 191 ( 1882 )

Oheif Justice Sharswood

delivered the opinion of the court, February 20th 1882.

By the Constitution of Pennsylvania, art. II. § 1, “ the legislative power of the Commonwealth shall be vested in a General Assembly which shall consist of a senate and house of representatives.” Several restrictions are placed on this general grant, both as to its subjects and the mode of its exercise, by the Declaration of Rights, art. 1, and subsequent special provision. To justify a court in pronouncing an Act of the legislature unconstitutional and void, either in whole or in part, it must be able to vouch some exception or prohibition clearly expressed or necessarily implied. To doubt is to be resolved in favor of the constitutionality of the Act. This rule of construction is so well settled by authority that it is entirely unnecessary to cite the cases. It follows as a necessary consequence of this principle, that where the contention is as to the meaning of a word, as it is in this case, if any meaning, whether technical or popular, will sustain the exercise of the power, it is sufficient. On the other hand, if the strict and legal meaning would have the effect to limit or destroy, while some other popular acceptation of the word would support the legislative Act, it must be resorted to. So we understand Farmers’ and Mechanics’ Bank v. Smith, 3 S. & R. 63, and Monongahela Nav. Co. v. Coons, 6 W. & S. 101 — relied on by the counsel for the defendant in error, in both which cases the constitutionality of the Act attacked was sustained. It is a clear logical deduction, from the premises already adverted to as well established. The popular sense of a technical word, if it has a popular sense broader than the technical one, must be adopted, but not if the effect be to limit or restrain the general grant of power.

The application of this principle we think, solves the doubt (for after all it is only a doubt) as to the meaniug of the word “ salary,” in the eighth section of article II. of the Constitution.

“ The members of the Genei’al Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever whether for service upon committee or otherwise. No member of either house shall, during the term for which he may have been elected, receive any increase of salary or mileage under any law passed during such term.” The Constitution of 1776, ch. 11, | 17, declared : “ The wages of representatives in General Assembly and all other state charges shall be paid out of the state treasury.” This was no doubt intended to abrogate the common law by which the wages of members of the House of Commons were paid by the counties, cities or boroughs which they represented : 1 Blackst. Com. 174. The same practice prevailed here in provincial times as may be seen by the Act of March 20th 1724-5 : “ An Act for raising county rates and levies, ” 1 Hall. Laws 209, where in section 4, among the objects for which the commissioners of each county were authorized to levy taxes, one was “ to pay for representatives’ services in General Assemblies.” Under this Constitution the wages of assemblymen were fixed at a sum per day, and we find an Act of March 19th 1777, entitled “An Act to increase the wages of assemblymen1 Dali. Laws 735.

No one will venture to say that wages, in the Constitution of 1776, necessarily meant daily wages, and that they could not have been fixed at a certain sum per session or per annum. The framers of the Constitution of 1790 saw fit to change this word wages to compensation — doubtless, because they thought it a word more befitting the dignity and importance of the office, not that they intended to make any change in the rule. “ The senators and representatives shall receive a compensation for their services, to be ascertained by law and paid out of the treasury of the Commonwealth: Art. 1, § 18. The convention of 1837-8 left the clause unaltered. Clearly no restriction was meant to be placed upon the legislature as to the amount or manner of ascertaining the rate of compensation, but they were loft at liberty to adopt any mode they saw fit — by the day, by.the month, by the session, or by the year. It was to be ascertained by law. Accordingly, the members continued to receive daily wages until 1855, when the compensation was fixed at a round sum per. annum, with an additional allowance of three dollars a day for every extra session, when convened by the executive, and a dollar and a half per day at every adjourned and extra session, when not convened by the executive. Act of May 7th 1855, § 9, 11, Pamph. L. 496. So it continued, with some increase in the amount, until the adoption of the present constitution.

If the framers of that constitution had gone back to the language of the constitution of 1776, and provided that “the members of the General Assembly shall receive such wages and mileage for regular and special sessions, ■ as shall be fixed by law,” the present contention would not have arisen. This may legitimately be inferred from the course pf the argument for the defendant in error as to what would have been the effect of the word compensation as contained in the constitution, of 1790 and proposed and rejected in the constitution of 1873. Yet according to the most approved lexicographers, the words “ wages” and “salary” are synonymous. They both mean one and the same thing: “a-sum of money periodically paid for services rendered.” How can we say that the people in adopting the constitution gave the word “salary ” a more restricted meaning? It is said, and the stress of the argument seems to be here, that we are to inquire, not as to the proper meaning of the word, but as to the sense it has received in popular use. We have shown that this is a just and sound rule, to sustain a grant of power, but not to limit and restrict it. But where are we to look for the popular sense of the word ? Surely not to the debates of the convention. Some of the members of that may have thought that the word “ salary ” would preclude “ daily wages,” which the word “compensation” would not. The majority, however, who contented themselves with voting without speaking, for all that appears, may have been of opinion that the word “ salary ” was as comprehensive as “ compensation,” and was a more fitting word to use in application to such an honorable and important- position. If it had been their intention to prohibit a per diem salary, they could have easily said so in very few words. The truth is, and this the lexicographers seem to hold, that if there is any difference in the popular sense between “salary ” and “ wages,” it is only in the application of them to■ more or less honorable services. A farmer pays his farm hands in common speech wages — whether by the day, the week, the harvest, or the year. If for any reason he has occasion to employ an overseer, his compensation, no matter how measured, is called a salary. An ironmaster pays his workmen wages, his manager receives a salary. A merchant pays wages to his servant who sweeps the floor, makes the fire and runs his errands, but he compensates his salesman or clerk by a salary. How can it make any difference in what -way the compensation is ascertained ? Had the Act of May 11th 1874, used the word “salary” instead of “compensation,” “a salary of ten dollars per diem ” — it would have been good English and perfectly intelligible to the common mind. When the constitution in other parts uses the words “ fixed salaries ” they were to take the place of fees — payment for services rendered from time to time — -not periodical; but it is not easy to perceive why, if these salaries were appointed to be measured by the day, they would be any the less “ fixed salaries.”

It is contended that the evident object of the constitution in this section was to shorten the sessions of the General Assembly, and to hold out for this purpose to the members as an inducement that as they could not thereby increase their compensation, they would be unwilling to prolong their sessions. If this was the object, the word was very unhappily chosen. A much simpler and more effective mode would have been, to have provided a rate per day, diminishing from day to day as the session continued. It is hard to believe that the convention believed that the General Assembly would be influenced by so sordid and unworthy a motive. But they did moan evidently to provide,, and they clearly expressed that meaning, that a legislature should not have power to pass any law which should have the effect of increasing the pay of its own members, and that they should under no circumstances receive any more compensation than that previously ascertained by law.

We ought to be careful not to hamper the power of the legislature by any narrow, strained construction. By the old Acts of Assembly, the provision for compensation to the members was generally, if not invariably, that the members should receive a certain sum “ for every day they shall attend upon their respective duties.” Act of April 13th 1791,3 Sm. 26; Actbf April 8th 1793, Ibid. 111. It may be very important hereafter, in view of what seems to be a growing evil, — frequent absence of the members, — to provide that members who-are not present and do not record their votes on the final passage of bills, shall not receive their salary for that day. If, however, they must receive a round sum for the session, it -would deprive the legislature of the power to make such a provision.

Judgment reversed, and now judgment for the Commonwealth and peremptory mandamus awarded, and it is ordered that the record be remitted to the court below for the enforcement of this judgment.

Mr. Justice Trunkey

filed the following dissenting opinion, February 27th 1882.

Having the conviction that the first section of the Act of May 11th 1874, clearly and palpably violates section 8 of art. II. of the Constitution, I would affirm the judgment of the court below. That Act, now sanctioned by the decision of this court,' will likely be deemed in harmony with the Constitution during its life. I shall not undertake the bootless task of giving reasons at length, for the belief that it is repugnant -in letter and spirit. At best, a dissenting opinion could be little more than an elaboration of the opinion of the learned judges of the Common Pleas, which so well sustains their judgment. To their reasons a few points might be added which, among many, were fully discussed by the counsel of the respective parties. I shall remark but one, namely, the Constitution declares that two specific forms of compensation for legislative service shall be allowed for entire, regular and special sessions, and forbids all others.

“ The members of the General Assembly shall receive such salary and mileage for regular and special sessions, as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise.” Const, art. II. § 8. They shall have salary and mileage for each session. This excludes salary for any other period. “ Salary by the session is directed, and all other divisions of time are excluded. But salary by the session is for a session, is salary for the whole session, and not for a part; it is for the entire service of a member at any session paid for, and as plainly means one sum, as does salary for a year, or annual salary.” The prohibitory words, aimed at committee service, by no reasonable interpretation, can limit or modify the declaration that the members shall receive no other compensation than the salary and mileage fixed by law for the session. The intention is to prevent any increase of the member’s salary and mileage, after his election, as effectually as section 13 of art. III. prohibits the increase of the salary or emoluments of any public officer after his election. An uncertain sum does not meet the requirement. To fix a sum as salary and allow daily pay to be added, leaves it to the members to increase their compensation, while in office, very much at their pleasure. The word salary, as applied to session, means a stipulated recompense for service at the session, and was used with the context to prevent compensation by daily pay, to limit the pay of members to a certain sum, and is not synonymous with “wages” as used in the Constitution of 1776, or with “ compensation ” as used in the Constitutions of 1790 and 1838. In the prior Constitutions, the “ wages ” or “ compensation” of representatives in the General Assembly, could bo ascertained by a law allowing a salary, or daily hire; the context did not limit to any inode, as does the Constitution of 1873. 1 think the words “such salary and mileage for regular and special sessions as shall be fixed by law,” should be taken in their ordinary sense, as the people who adopted the Constitution commonly understood them. I believe they mean a stipulated sum for each session, and not daily wages, or daily hire, or salt money.