Smith v. Auditor General

130 N.W. 557, 165 Mich. 140, 1911 Mich. LEXIS 778
CourtMichigan Supreme Court
DecidedMarch 27, 1911
DocketCalendar No. 24,493
StatusPublished
Cited by8 cases

This text of 130 N.W. 557 (Smith v. Auditor General) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Auditor General, 130 N.W. 557, 165 Mich. 140, 1911 Mich. LEXIS 778 (Mich. 1911).

Opinions

Blair, J.

On or about January 10, 1911, relator was duly appointed to the office of assistant secretary of the senate. On February 2d there was issued to him, under the provisions of section 13, 1 Comp. Laws, being section 3 of Act No. 3, Session Laws of 1873, as amended by Act No. 85, Pub. Acts 1907, a certificate, signed by the president and secretary of the senate, that there was due to relator for services as such assistant secretary the sum of $60 for the salary period, January 24, 1911, to February 2, 1911, inclusive. The senate was in actual session on each day during said period, except Saturday, January 28th, and Sunday, January 29th. The relator presented such certificate to the auditor general for his signature, as provided in section 13. The auditor general refused to countersign it, basing his refusal upon a written opinion of the attorney general that officers and employés of the house and senate are not entitled to a per diem compensation for services rendered on Sunday.

Belator’s petition prays for a writ of mandamus directing the auditor general to countersign such certificate, and also to issue his warrant on the State treasurer therefor. If it shall appear, as contended by relator, that respondent’s position cannot be sustained in law, then the writ should issue, commanding him to perform one or both of said duties.

The Constitution of 1835, Art. 4, § 18, provided that:

“ The members of the legislature shall receive for their [142]*142services a compensation to be ascertained by law * * * and such compensation shall never exceed $3 a day.”

The Constitution of 1850 provided, article 4, § 15:

“The compensation of the members of the legislature shall be $3 per day for actual attendance and when absent on account of sickness for the first sixty days of the session of the year 1851 and for the first forty days of every subsequent session, and nothing thereafter. When convened in extra session their compensation shall be $3 a day for the first twenty days and nothing thereafter.”

Speaking of these Constitutions, this court said at an early day:

“Under the former Constitution the amount of ¡compensation allowed to members and officers of the senate and house of representatives was settled upon and fixed annually by the legislature itself, but the amount is no longer the subject of legislation. It is now clearly and definitely settled and fixed by the revised Constitution. Section 15 of article 4 of that instrument provides as follows,” etc.

This section was amended in 1859-60 so as to read:

“ The compensation of the members of the legislature shall be three dollars per day for actual attendance, and, when absent on account of sickness, but the legislature may allow extra compensation to the members from the territory of the upper peninsula, not exceeding two dollars per day during a session. When convened in extra session their compensation shall be three dollars a day for the first twenty days, and nothing thereafter. * * * ”

With these provisions of the Constitution in force, the legislature adopted Act No. 3 of the Session Laws of 1873, entitled, “An act to provide for the payment of the officers and members of the legislature.”

Section 2 provides that:

“ The compensation of the president and members of the senate and of the speaker and members of the house of representatives shall be three dollars per day each, for actual attendance, and when absent on account of sickness during the session of the legislature. * * * The compensation of the secretary, engrossing and en[143]*143rolling clerk and sergeant at arms of the senate, and their authorized assistants, * * * shall be three dollars a day each, for actual attendance during the session,” etc.

This section was amended in 1907 (Act No. 85, Pub. Acts 1907) so as to read:

“ From and after the first day of January, 1901, the compensation of the president and members of the senate, and the speaker and members of the house of representatives, shall be three dollars per day^each, for actual attendance, and when absent on account of sickness during the session of the legislature. * *' * The per diem compensation of the secretary of the senate shall be ten dollars; of the first assistant secretary, six dollars, * * * which compensation shall be in full for all services performed during any regular or special session,” etc.

These provisions of the statute render it clear that it was the intention of the legislature to place the compensation of the officers referred to upon precisely the same legal standing as their own, namely, a fixed compensation per day for aetual attendance during the session. If, therefore, a reasonable construction of the constitutional provisions determining their compensation authorized the members of the legislature to receive their per diem compensation upon a computation including Sundays, it logically follows that the same mode of computation is to be used in determining the relator’s compensation.

It will be observed that by the original Constitution of 1850, compensation was limited to the, first 60 days of the session, etc., and as amended in 1860, although the provisions limiting payment at the first session to 60 days and thereafter to 40 days were omitted, the provision was retained that when convened in extra session their compensation should be $3 per day for the first 20 days.

The Constitution of 1850, Art. 4, § 28, contained a further provision that:

“ No new bill shall be introduced into either house of the legislature after the first 50 days of a session shall have expired.”

[144]*144‘ So far as we have been able to ascertain, this provision has always been construed by the legislature as limiting the introduction of new bills to the first 50 successive days of the session, including Sundays. While the correctness of this practical construction of the legislature has not been expressly passed upon by the court, it was recognized in the case of Davock v. Moore, 105 Mich. 120 (vide page 133, 63 N. W. 424, 28 L. R. A. 783). In that case the bill was introduced on the fiftieth consecutive day, including Sundays, and the court said:

“It appears that the bill was introduced on the fiftieth day, and therefore within the time limited by this clause of the Constitution. ”

This is the natural meaning of the language used, and is in accordance with the contemporaneous and subsequent constructions of the legislatures of the State, both of which considerations are entitled to weight in determining the proper construction of the constitutional provisions. Attorney General v. State Board of Assessors, 143 Mich. 73 (106 N. W. 698); Menton v. Cook, 147 Mich. 540 (111 N. W. 94). This construction is further strengthened by the provision of article 4, § 14, of the Constitution, that:

“If any bill be not returned by the governor within 10 days, Sundays excepted, after it has been presented to him,” etc.

If the words, “first fifty days of a session ” used in section 28 of article 4 include Sundays, no good reason is perceived why the same interpretation should not be applied to similar words used in the sections as to compensation.

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Cite This Page — Counsel Stack

Bluebook (online)
130 N.W. 557, 165 Mich. 140, 1911 Mich. LEXIS 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-auditor-general-mich-1911.