State ex rel. Payne v. Reeves

184 N.W. 993, 44 S.D. 568, 1921 S.D. LEXIS 167

• Court: South Dakota Supreme Court
• Decided: October 27, 1921
• Docket: File No. 4975
• Status: Published

Opinions

ORVTS, J.

This is an original proceeding commenced in the Supreme Court by the plaintiff, state of South Dakota, on the relation of Byron S. Payne, its Attorney General, seeking to restrain and prohibit the defendant, Jay Reeves, as Auditor of said state, from drawing and issuing warrants on the State Treasurer for purposes hereinafter stated.

Plaintiff’s petition consists of five parts, numbered from. I to V, both inclusive, each relating to a separate special proceeding.

“Part I” relates to an expense allowance of $150 per month to each of the Supreme Court judges; “Part II” to an expense allowance of $50 per month to each of the state officers named above as interveners, other than the Governor and judicial officers; “Part III” to an expense allowance of $75 per month to each of the circuit court judges; “Part IV” to rent of living rooms of the Governor at the state capital; and “Part V” to the power of the Legislature to erect a Governor’s mansion.

Each of the regular Supreme Court judges and each of the circuit court judges of this state being interested and therefore disqualified, the Supreme Court, under article 5,, § 7, of the State Constitution, and: chapter 343, 'Session .Laws of 1919, appointed, from the qualified practicing attorneys of the state, Robert C. Hayes, of Deadwood, George Rice, of Elandreau, T. H. Null, of Huron, A. H. Orvis, of Yankton, and L. W. Bicknell, of Webster, to act as judges of the ’Supreme Court in this proceeding, and to hear, try, and determine the issues involved and to ejiter judgment accordingly, and said persons having qualified as required by law, and having organized as the Supreme Court by electing Robert C. Hayes, Presiding Judge, proceeded to hear, try, and determine said issues.

Samuel C. Polley, John Howard Gates, Charles S;. Whiting, Ellison G. Smith, and James H. McCoy, as the regular Supreme Court judges of this state, having 'been permitted to intervene, joined in an answer or return to “Part I” of the petition.

C. A. Burkhart, as Secretary of State, W. S. O’Brien, as Treasurer, Fred L. Shaw, as Superintendent of Public Instruction, and N. E. Knight, as Commissioner of School and Public Lands, all of the state of South Dakota, were permitted to intervene, and they also joined in an answer or return to “Part II” of the petition.

R~ B. Tripp, L. L. Fleeger, John T. Medin, W. N. Skinner, Frank B. Smith, Frank Anderson, John F. Hughes, Walter G. Misc., James F. McNenny, Alva E. Taylor, Joseph H. Bottum, N. D. Burch, John G. Bartine, and W. F. Eddy, as judges of the circuit court of this state, have likewise been permitted to intervene, and they have joined in an answer or return to “Part III” of the petition.

W. H. McMaster, as Governor of this state, has intervened and filed an answer or return to “Parts IV and V” of the petition.

The defendant, Jay Reeves, as Auditor of the state, has filed a general demurrer to the petition and to each and every part thereof.

The real parties in interest in this proceeding are the state of South Dakota and the interveners. 'All material facts are conceded by the parties in interest, and the only issues for determination are questions of constitutional law.

PART I.

The essential facts to be considered in the special proceeding designated as “Part I” are: The interveners Samuel C. Polley, John Howard Gates, Charles S. Whiting, Ellison G. Smith, and James PI. McCoy are the duly elected, qualified, and acting judges of the Supreme Court of the state of South Dakota; the legal and actual residence of each of said Supreme Court judges at the time he first entered upon the 'discharge of his duties as' one of the judges of said court was at a place other than the city of Pierre, the capital of South Dakota;-each of said judges, at or about the time he first entered upon the discharge of his duties as one of the judges of said court, changed his place of actual residence to said city of Pierre, and since said time has resided in said city.' Each of said judges, under the Constitution of this state, has retained his legal residence at his former place of actual residence, and each of said judges voluntarily changed his place of actual residence for the sole purpose of enabling him more efficiently to discharge his official duties.

[1] The Constitution of this state does not require the judges of the Supreme Court to reside at the state capital, and, except “that at least two terms of the Supreme Court shall be held each year at the seat of government,” it does not require the judges to perform any of their official duties at the state capital.

[2] Section 5131 of the South Dakota Revised Code of 1919, originally enacted as chapter 239, Laws of 1911, is as follows :

“Whenever a judge of the Supreme Court whose legal residence shall be at some place other than the state capital shall ■have changed his place of actual residence to the capital, there shall be paid to such judge, in consideration of expenses incident to removal to the capital, the increased expenses of living at a place other , than his legal residence, and the expenses of traveling to and from such legal residence, the fixed sum of fifty dollars for each month, payable upon the certified voucher of such judge filed in the office of the State Auditor.”

This section was amended by chapter 400, Laws of 1921, so that the law now allows the fixed sum of $150 for each month, instead of $50 as provided by the original law. In other respects the original law remains unchanged.

The state Legislature, by section 25 of chapter 21 of the Laws of 1921, being the general appropriation act appropriating money for salaries and expenses of the executive and judicial departments of the state, appropriated and set aside the sum of $18,000 for the biennial period beginning July 1, 1921, and terminating June 30, 1923, for the'payment of expenses of the judges of the Supreme Court of the state of South Dakota, as provided for in section 5131 of the South Dakota Revised Code of 1919, as amended by chapter 400, Laws of 1921.

The annual salary of each of the judges of the Supreme ■ Court is fixed at $3,000, and under article 21, § 2, of the State Constitution, it is provided that—

“They shall receive no fees or perquisites whatever for the performance of any duties connected with their offices. It shall not be competent for the Legislature to increase the salaries of the officers named in this article except as herein provided.”

Again, article 5, § 30, of the State Constitution, provides:

“The judges of the Supreme Court, circuit courts and county courts shall each receive such salary as may be provided by law, consistent with this Constitution, and no such judge shall receive any compensation, perquisite or emoluments for or on account of his office in any form whatever, except such salary: Provided, that county judges may accept and receive such fees as may be allowed under the land laws of the United States.”

It is contended by plaintiff that the allowance of $150 per month to each judge of the Supreme Court in consideration of expenses incident to removal to the capital, the increased expenses of living at a place other than his legal residence, and the expenses of traveling to and' from suoh legal residence, is excessive and unreasonable; that said expense allowance is not based upon any actual expenses that a judge of the Supreme Court might or does reasonably incur incident to the discharge of his duties as such officer; and that said allowance is, in effect, an allowance for living expenses and operates to' increase the salary or compensation of each of the Supreme Court judges, and is. in contravention of the provisions of the state Constitution above quoted.

It is contended by the Supreme Court judges that the reasonableness of the amount allowed -as expenses by chapter 400, Laws of 1921, was a matter wholly within the discretion of the Legislature; that this determination, presumptively made upon due investigation and consideration of all the material facts and circumstances and without intent to violate the state 'Constitution, cannot be disturbed by this court unless the amount allowed is so plainly and palpably in excess of any amount of expenses which could possibly be incurred 'by the judges in the discharge of their official duties as to show without evidence or argument, beyond all reasonable doubt, that the Legislature intended to increase the salary of the judges and' not to provide for the payment of expenses incident to the discharge of official duties.

Plaintiff also contends that section 5131 of the Revised Code of 1919, as the same was originally enacted, is unconstitutional, for the reason that if the expenses allowed exceed actijal expenses necessarily the excess operates as an increase of salary, and therefore is in violation of the constitutional provisions hereinbefore quoted.

[3] It is a fundamental rule that the state Constitution is a limitation of power restrictive in its nature, and that the Legislature has every power except that delegated to the federal government and that restricted or limited by the state Constitution. The generally accepted doctrine is that the Legislature may pass any acts that are not expressly or by necessary implication inhibited by their own Constitution or by the federal Constitution. 12 C. J. 746.

[4] iThe Constitution of this state does not contain any restrictions upon the power of the Legislature to make allowance for the expenses of the several constitutional state officers' who are interveners in this proceeding. What the representatives of the people have not been forbidden to do by the organic law, that they may do. Russ v. Commonwealth, 210 Pa. 54, 60 Atl. 169, 1 L. R. A. (N. S.) 409, 105 Am. St. Rep. 825.

[5] In construing a constitutional provision the fundamental purpose is to ascertain and give effect to the intent of the framers and of the people - who adopted it. The court therefore should constantly keep in mind the object sought to be accomplished by its adoption and the evils, if any, sought to be prevented or remedied. Constitutional provisions are presumed to have been more carefully and deliberately Jramed than is the case with statutes; hence it is sometimes said that less latitude should be indulged by the courts in their construction, but, on the other hand, courts are not at liberty to declare an act void because they deem it opposed to the spirit of the Constitution. 12 C. J. 702.

[6] No legislative act should be declared unconstitutional unless the conflict between its provisions and some principle of constitutional law is so plain and palpable as to leave no reasonable doubt of its validity. State ex rel. Longstaff v. Anderson, 33 S. D. 574, 146 N. W. 703; In re Watson, 17 S. D. 486, 97 N. W. 463, 2 Ann. Cas. 321; State v. Becker, 3 S. D. 29, 51 N. W. 1018; Bon Homme County v. Berndt, 15 S. D. 494, 90 N. W. 147; State v. Summers, 33 S. D. 40, 144 N. W. 730, 50 L. R. A. (N. S.) 206, Ann. Cas. 1916B, 860.

The Supreme Court of this state ‘has on many occasions laid down the rule that ¡an act of the Legislature will not be held unconstitutional unless its unconstitutionality appears plainly beyond a reasonable doubt. Metropolitan Casualty Ins. Co. v. Basford, 31 S. D. 149, 139 N. W. 795.

[7] When reasonably possible a statute must be so construed as to uphold its validity; indeed, a statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts on that score. If a statute is susceptible of two constructions, one of which will render it ¡constitutional and the other unconstitutional, it is the duty of the court to adopt that construction which, without doing violence to the fair meaning of the language, will render it vaild: 12 C. J. 788, citing ¡South Dakota cases among others.

[8] A presumption in favor of constitutionality is raised by the mere fact of the enactment of the statute 'by the Legislature. 12 C. J. 791, citing South Dakota cases among others.

This court in Queen City Insurance Co. v. Basford, 27 S. D. 164, 130 N. W. 44, in an opinion by Judge Corson, said:

“The power of the court to declare an act of the Legislature unconstitutional is an extraordinary power and should only be exercised in a case free from all reasonable doubt.”

[9] Section 5131, Revised Code of 1919, first enacted as chapter 239, Laws of 19x1, was in 1915 before this court for construction in McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361, L. R. A. 1915E, 858, Ann. Cas. 1917A, 1046. Handlin, then State Auditor, refused to issue a warrant to McCoy, one of the Supreme Court judges, for the expense allowance of $50 per month provided for by said law, claiming that the law was unconstitutional because in contravention of the provisions of the state Constitution hereinbefore quoted. McCoy made application to the Supreme Court for a writ of mandamus compelling Handlin, as State Auditor, to issue a warrant upon the State Treasurer for the expense allowance which he claimed was due him. Every judge of the Supreme Court was interested, but at that time there was no other court in which the proceeding could be heard, tried, and determined, and no method provided by the Constitution or any statute for the calling in of substitute judges to hear, try, and determine the proceeding. Under those circumstances the Supreme Court held that, as a matter of necessity, it had jurisdiction and that it was its duty to determine the proceeding. The decision of the court on that question undoubtedly was right. It is sustained by practically all courts of last resort, and the Attorney General concedes that on that question the decision was correct. The court also decided that chapter 239, Laws of 1911, did not violate any provision of the state .Constitution.

This court, as now constituted for the decision of this proceeding, might, under the doctrine of stare decisis, hold that the precise questions before the Supreme Court in McCoy v. Handlin are no longer open to controversy in this state; but as the judges of the Supreme Court in their answer have expressly declined to avail themselves of the doctrine of stare decisis, we shall consider that decision the same as we would had it been made by the Supreme Court of some other state, and shall give it only such consideration and effect as in our judgment it merits 'by reason of the authorities cited and reasons stated therein. We believe that decision has never been criticized by any court. On the contrary, it has been cited, approved, and followed by.courts of the highest-standing in other jurisdictions.

[10, 11] In Smith v. Jackson, 241 Fed. 749, 154 C. C. A. 449, United States District Judge Clayton rendered a decision which involved the question of what should be considered emoluments. After judgment in that case an appeal was taken therefrom to the Circuit 'Court of Appeals of the Fifth 'Circuit, where the judgment appealed from was affirmed, and where the Circuit Court of Appeals adopted the opinion 'of Judge Clayton, as its own without change. 241 Fed. 747, 154 C. C. A. 449. An appeal was then taken from .the judgment of the Circuit Court of Appeals to the United States Supreme Court, where the judgment was affirmed. 246 U. S. 388, 38 Sup. Ct. 353, 62 L. Ed. 788. Judge Clayton, in his opinion, speaking of the word “emolument,” said:

“The definition of the term is ascertained from adjudged cases cited in Words and Phrases, vol. 3, ,p. 2367, where it is said: ‘Emolument is the profit arising from office or employment; that which is received as compensation for services, or which is annexed to the possession of office, as salary, fees, and perquisites.’ I think it -may- be said, therefore, that an emolument is something positively and directly conferred as compensation, or gain, that the holder of an office receives, and not something necessarily, inseparably, and incidentally used by him in the discharge of his duty, a duty for which he is paid a fixed salary. * * * This question here is analogous to the one involved in McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361, L. R. A. 1915E, 858. In that case the contest was over an extra allowance of a specified sum per month to such judges of the 'Supreme Court as take up their residence at the capital (of South Dakota) to meet the extra expenses thereby caused.”

After quoting the provisions of the South Dakota Constitution, and in speaking of the opinion in McCoy v. Handlin, he said:

“The opinion was well considered, instructive, and is illuminating in the consideration of the instant case.”

Between one and two pages of the printed opinion in McCoy v. Handlin are quoted and made a part of the opinion of Judge Clayton.

The Supreme Court of Tennessee, in State v. Thomason, 142 Tenn. 527, 221 S. W. 491, wherein a lump sum expense allowance was sustained, also cites McCoy v. Handlin with approval. The same is true of the Missouri Supreme Court, in Macon County v. Williams, 224 S. W. 835.

In State ex rel. Langer v. Kositzsky, 38 N. D. 616, 166 N. W. 534, D. R. A. 1918D, 237, McCoy v. Handlin is cited in support of the proposition that when the amount of a claim based upon a valid law is fixed by law, so that there is no dispute as to the amount of the claim, it then becomes the duty of the Auditor to allow it, and to issue a warrant upon the State Treasurer therefor, provided, of course, that money has been appropriated for the payment thereof.

That an allowance for expenses actually incurred by an officer incident to the performance of the duties of his office is neither emoluments nor perquisites is well settled, and this is conceded by the Attornej'- General and his assistant in this proceeding. Has the Legislature power to allow expenses in a lump sum? We are convinced that it has, provided it does not make the allowance greater than the expenses it was designed to cover. It was so held by this court in McCoy v. Handlin, supra. The court in its opinion in that proceeding called attention to the fact that the Constitution of this state, as well as the Constitutions of nearly all the other states, contains no provision requiring the judges of the appellate court to reside at the capital, and that it would therefore have been entirely proper and legal for the plaintiff in that proceeding (Judge McCoy) to have retained his actual residence at Aberdeen, the place of his legal residence, just as many of the judges in other states live away from the capital. The court said:

“If the judges of this court continued to reside at the places of their legal residence, no question, under any authority, could be raised as to the constitutionality of a law which appropriated money to reimburse them for their actual expenses incident to their travel to and from, and for their hotel bills while at, the capital. .Such an allowance would leave to the judges clear, as compensation for their official services, the salary provided . by law, and no one could, and we apprehend no one would, say-that they received perquisites or emoluments. In view of the number of trips that would have to be made to the capital and the number of days that would have to be spent there, it is clear that the aggregate of such expenses would be in excess of $600 per year for each judge so living away from the capital. Let us suppose that the several judges of this court were living at the places of their legal residence, and the Legislature were asked to enact legislation to reimburse them for their actual expenses incurred in going to and remaining at the capital, which expenses could, from their nature, be itemized. Is it possible that such Legislature ■could not say to the judges of this court: ■ ‘We believe that, owing to the fact that the duties of your office require your presence at the capital a considerable portion of the time, you can better discharge the duties of such office if you will reside at the capital; hence, in the furtherance of a sound public policy, we ask you to make your actual residence at the capital, and in order that you may do so without financial loss to you, we will, in the place of paying your expenses of traveling to and boarding at the capital, while living at your places of legal residence, allow you such a sum as will cover the extra expense incident to your moving to and living at the capital.’

“Would not the allowance in the one case be as much an allowance for expenses, and in no sense a perquisite or emolument, as in the other ? Certainly it would; the only difference being that in the one case the law could provide for the expenses to be itemized and the exact amount paid, while in the other, from the very nature of things, it would be necessary for the Legislature to estimate the reasonable and proper amount of ■ such expenses and •appropriate a lump sum therefor. If the Legislature could pass such a law to encourage the judges to move to the capital, for the same reasons it certainly could pass one where, prior thereto, the judges had voluntarily moved to the capital. * * * The Legislature had a right, in determining the advisability of this legislation, to také into account what would have been the probable allowance necessary to meet the expenses for which the judges would have been justly entitled to be reimbursed, if they had remained at their legal residences, and also to take into account the estimated amount of additional expense incident to moving to and living at the capital; so long as it has not exceeded either of these sums .there is left no ground to claim that it has increased their salaries.”

This lengthy quotation from the opinion in that proceeding is made because the reasoning of the court therein, and in the other cases referred to which have approved and followed it, is, to our minds, unanswerable. As said by Judge Clayton in Smith v. Jackson, supra:

“The opinion was well considered', instructive, and is illuminating in the consideration of the instant case.”

We hold that the decision in McCoy v. Handlin has settled the law in this state on all the questions which it decided, not under the doctrine of stare decisis, but because the reasoning of the court in that decision is unanswerable.

[12] The questions now before this court, as constituted for the purposes of this .proceeding, are the same as those before the court in McCoy v. Handlin, except that in this proceeding the amount of the allowance to each of the judges is $150 per month instead of $50. Does this fact require, or does it justify, a different decision? Applying the principles that are well settled in deciding constitutional questions, we are convinced that it does not. The Supreme Court of Tennessee, in State v. Thomason, 142 Tenn. 527, 221 S. W. 491, where an expense allowance in a lump sum was attacked on the ground that it was unconstitutional, said: •

“It is urged that to sustain the power of the Legislature to make appropriations of the character here questioned will authorize or result in similar ones of larger amount. It may likewise be plausibly argued that in its control of the public finances the Legislature may authorize unwise and extravagant expenditures, but these insistences address themselves to the discretion of the Legislature in the proper exercise of its representative power, and are not pertinent to the judicial determination of the existence of that power. The exclusive control of the expenditure of the public moneys is vested in the legislative branch of the government, and is the subject of limitation by the courts only so far1 as provided by the Constitution.”

Each member of the Legislature is required to take the same oath of office as is taken by each of the judges of this court, which is to support the Constitution of the United States and of the state of iSouth Dakota. We cannot, at least in a doubtful case, presume that the members of the Legislature have intentionally violated their oaths of office.

[13] Whether the expense allowance of $150 per month to each judge of the Supreme Court is or is not excessive is a question depending to some extent upon the standard of living of the judges of the Supreme Court. The station or position in life of the party-whose expenses are under consideration should be considered, and the Legislature in enacting the law now under consideration was dealing with the question of the expense of judges of the Supreme Court. Those judges are entitled under the Constitution to the salaries -fixed by the Constitution, and they are entitled to such allowance for expenses as will enable them to live in a manner becoming the judges of the Supreme Court of a great state. The legislators -may well have thought it the part of wisdom to make provision for the expenses of the judges in such, an amount that it would not be necessary for them tQ take from their inadequate salaries the money necessary to pay such expenses. This court will not presume that the matter of the amount and the-necessity for these expenses was not made the subject of proper investigation by the Legislature, and its determination as to the facts cannot, under any principle of constitutional law, be disturbed by this court unless the amount allowed is so plainly and palpably in excess of any amount of expenses which could possibly be incurred by the judges in the discharge of their official duties as to show without evidence or argument, beyond all reasonable doubt, that the Legislature intended to increase the salary of the judges and not to'provide for the payment of expenses incident to the discharge Df official duties. The question is not what this court might conclude would be a reasonable amount to allow the judges for expenses incurred in the discharge of their official duties, if it were authorized to fix such allowance, but whether the amount fixed by the Legislature is plainly and palpably in excess of any amount which the judges could possibly incur. In other words, this court, to sustain' the contention of the learned Attorney General, must take judicial knowledge of the fact, if it be a fact, that $15o per month allowed to each of the judges as expenses is in excess of any amount that could possibly be incurred. It is the action of the Legislature — the ohosen representatives of the people — which is under investigation in this proceeding, and not the action of the Supreme Court or its judges.

This court can and should take judicial notice of the increased cost of transportation and living in 1921 as compared with such cost in 1911, the time when the statute construed in McCoy v. Handlin was enacted. It is bound to presume that this change in conditions was duly considered by the Legislature. It is, of course, within the power of the Legislature to repeal or amend the law now under consideration, and it is to be presumed that whenever there is any substantial change in conditions affecting the matter the Legislature will duly consider such change and legislate accordingly. As was said by the Supreme Court of California, in Ex parte Yun Quong, 159 Cal. 508, 114 Pac. 835, Ann. Cas. 1912C, 969:

“But the validity of legislation which would be necessary or proper under a given state of facts does not depend upon the actual existence of the supposed facts. It is enough if the lawmaking body may rationally believe such facts to be established.”

In the case of People v. Durston, 119 N. Y. 569, 24 N. E. 6, 7 L. R. A. 715, 16 Am. St. Rep, 859, it was said:

“If it cannot be made to appear that a law is in conflict with the Constitution, by argument deduced from the language of the law itself, or from matters of which a court can take judicial notice, then the act must stand.”

It does not appear from the face of the act itself that the expenses allowed are excessive, nor does it appear from any matters of fact of which a court can take judicial notice. The Legislature had the power to investigate and determine these facts, and it has presumably done so.

In the case of State v. Tower, 185 Mo. 79, 84 S. W. 10, 68 L. R. A. 402, the court, in speaking of legislative power and legislative discretion, said:

“It had the power; and must be presumed to have inquired into the actual conditions, * * * and the discretion exercised by them within their conceded powers we have no power to control, unless it involves a violation of some right protected by the Constitution.” (

[14] If, under any possible state of facts, the acts in question can be held to be constitutional, this court is bound to presume that such facts existed. As was well said by the Supreme Court of Iowa, in McGuire v. C., B. & Q. R. Co., 131 Iowa, 340, 108 N. W. 902, 33 L. R. A. (N. S.) 706:

“It is not for the court to inquire or determine whether a state of facts existed calling for the enactment of the legislation in question. That is for the exclusive consideration of the Legislature. If under any possible state of facts the act would be constitutional and valid, the court is bound to presume that such condition existed.”

The Supreme Court of the United States, in the case of Calder v. People of Michigan, 218 U. S. 591, 31 Sup. Ct. 122, 34 L. Ed. 1163, in which the motives and purposes of the Legislature were attempted to be called in question, said:

“But we do not inquire into the knowledge, negligence, methods or motives of the Legislature if, as in this case, the repeal was passed in due form.”

The question of whether or not the Legislature exceeded its powers in making an expense allowance to each of the Supreme Court judges of so great a sum as $150 per month is the only one in this proceeding which to us has ever seemed difficult or doubtful.

[15] If it be conceded that the Legislature may provide for the allowance of expenses in a lump sum of any amount, no matter how small, the next question is, .Where can the line be drawn by this court below which the Legislature in its discretion may go, but beyond which it cannot pass? Can such a line be drawn anywhere? We may and do concede that a so-called expense allowance might be so great that upon its face, without argument, it would furnish conclusive evidence that the Legislature did not and could not believe or intend that it was for expenses incurred or that might be incurred. To illustrate: If instead of $1,800 per year the Legislature had provided for $5,000 per' year to each of the judges, we would have no hesitation in holding such a law unconstitutional. Perhaps in making an expense allowance of $1,800 per year .the Legislature came dangerously close to the line beyond which this court might say it cannot pass. In this proceeding it is unnecessary to decide whether it did or not, and we do not attempt to do so. What we do decide is that we cannot take judicial knowledge of the fact, if it be a fact, that an expense allowance of $1,800 per year to each of the Supreme Court judges is so excessive that we could be justified in saying the Legislature in making such allowance acted in bad faith and in fact increased the salaries of the judges in violation of the state Constitution.

[16] The Legislature by making the allowance has, in effect, said it is not excessive. Whether it is or is not excessive cannot be proved as a fact by witnesses for the purpose of holding the law unconstitutional. It is not a matter of expert opinion. It is a matter to be estimated — a matter of judgment which belongs to the legislative 'branch of the government, and one -with which courts cannot interfere unless it conclusively appears that the Legislature in making the allowance acted in bad faith.

[17] We cannot conclude beyond a reasonable doubt that chapter 400, Laws of 1921, violates any provision of the state Constitution, and where there is a reasonable doubt the law must stand. It may be thought by some that the framers of the Constitution and the 'people who adopted it should in that instrument have denied to the Legislature the right to provide for any expense allowance in a lump sum to any officer, either constitutional or statutory. It is now about 32 years since the state Constitution became operative, and conditions since 1889 have changed; many things may be considered advisable or necessary now that were not thought of at that time. It may now be believed -that the habit or custom of providing for expenses in a lump-sum is unwise and liable to abuse. No matter what the members of this court may think as to the wisdom of such legislation, it must be evident to all that it is not a judicial question; it is purely a question of policy with which courts are not concerned.

These conclusions necessarily require that the application for a writ of prohibition, in so far as it would deny to each of the Supreme Court judges his right to the expense allowance of $150 per month, should be denied; and it is so ordered.

PART II.

ORVIS, J.

The separate special proceeding designated Part II relates to an expense allowance of $50 per month to C. A. Burkhart, as Secretary of the state of South Dakota, W. S. O’Brien as Treasurer of said state, Fred L. Shaw as Superintendent of Public Instruction of said state, and N. E. Knight as ■Commissioner of School and Public Lands of said state, all of whom are interveners in said proceeding. The issues in this proceeding, as in Part I, relate to questions of constitutional law.

Section 7060 of the Revised Code of 1919, originally enacted as chapter 365 of the Laws of 1917, is as follows:

That “whenever a Secretary of State, State Auditor, State Treasurer, Superintendent of Public Instruction or Commissioner of School and P'ublic Lands, whose legal residence shall be at some place other than the state capital, shall have changed his place of actual residence to the capital, there shall be paid to such officer, in consideration of expenses incident to removal to the capital, the increased expenses of living at a place other than his legal residence and the expenses of traveling to and from such legal residence, the fixed sum: of fifty, dollars for each month, payable upon the certified vouchers of such officers, filed in the office of the State Auditor.”

By sections 6, 22, 24, and 27 of chapter 21 of the Session Laws of 1921, the Legislature appropriated money sufficient to pay to each of the intervening state officers the sum authorized by said section 7060, -Revised Code of 1919. It is contended by the Attorney General and his assistant that said section 7060 is in violation of article 21, § 2, of the state Constitution, which is as follows:

“The Secretary of State, State Treasurer and State Auditor shall each receive an annual salary of $1,800; the Commissioner of School and Public Lands shall receive an annual salary of $1,800; the Superintendent of Public Instruction shall receive an annual salary of $1,800; * * * they shall receive no fees or perquisites whatever for the performance of any -duties connected with their offices. It -shall not be -competent for the Legislature to increase the salaries of the officers named in this article except as herein provided.”

By article 4, § 12, of the state Constitution, it is provided that the officers above named shall respectively keep their offices at the seat of government.

[1] It is conceded that each and all of said officers, in order properly and efficiently to conduct their offices, have taken up their actual residence in the city of Pierre, although prior to their assuming their official duties as said officers each and all of them resided in other cities and parts of the state of South Dakota, and that each and all of said officers voluntarily changed their places of actual residence te the capital of the state of South Dakota. Said officers are not required to reside at the state capital by any law, constitutional or statutory; they are simply required, under the Constitution, to keep their offices at the seat of government.

It was within the legislative power to provide as it did, in 1917, by the enactment of the statute hereinbefore referred to, for the expenses of the intervening constitutional state officers a lump sum, provided the sum allowed did not exceed the actual expenses which it was designed to cover.

Nearly every reason given for sustaining a lump allowance to the Supreme -Court judges in Part I of this opinion applies with equal force to the intervening- state officers. The fact that these officers are required to keep their offices at the seat of government, while the judges of the 'Supreme -Court are only required by the -Constitution to hold at least two terms of the Supreme Court at the seat of government each year, cannot be construed as preventing the Legislature from allowing to the intervening state officers the right to such expenses as they would necessarily incur had-they retained their actual places of residence where they resided when elected to the offiices which they now hold, and had they made frequent trips to and from the state capital.’

[2] For reasons given in Part I of this opinion, we cannot escape the conclusion that section 7060,' Revised Code of 1919, is a valid legislative enactment, and that the -writ of prohibition applied for, in so far as -it would affect the rights of the constitutional state officers who are interveners herein to ■ each receive the sum of $50 per month, should be denied; and it is so ordered.

PART III.

Part III of plaintiff’s petition relates to an expense allowance to each of the circuit court judges of this state of $75 per month. It is contended by the Attorney General and his assistant that chapter 159, Session Laws of 1919, is unconstitutional. Said statute is as follows:

“In consideration of paying the traveling expenses, hotel bills, telephone expenses, furnishing stationery, office supplies and other expenses of circuit court judges in the state of South Dakota while performing the duties of their office, there shall be paid to each judge of the circuit court in the, state of South Dakota the fixed sum of $75 for each month, payable upon certified vouchers of such judge filed in'the office of the State Auditor.”

By section 7, c. 21, Session Laws of 1921, an appropriation sufficient for the payment of the expenses provided for in said statute was made by the state Legislature. The only provisions of the Constitution which it is contended chapter 159, Session Laws of 1919, contravenes, are article 21, § 2, and article 5, § 30'; both of which, so far ás material, are quoted in Part I of this opinion. The issues for trial all relate to questions ’ of constitutional law.

Nearly all that has been said in Part I of this opinion is with equal force applicable to the issues relating to' the circuit court judges.

There are certain facts in this proceeding of which the court takes judicial notice, different from those considered in Parts I and II of this opinion. There are a number of counties included in and constituting the circuit of each óf the circuit court judges, and it is necessary for them to hold terms of court at the county seat of each of said counties. It is necessary in the discharge of their duties that they should go about from county to county and be absent from their homes much of the time. In performing such duties they necessarily incur expenses for traveling, hotel bills, telephone bills, stationery, office supplies, and other expenses incident to the discharge of their official duties. These expenses cannot be avoided. Was it not the plain duty of the Legislature to provide an allowance to each of the circuit court judges sufficient to pay said expenses?

This court will take judicial notice of the fact that all expenses necessarily incurred by circuit court judges in the performance of their official duties are very much greater than they were at the time of the adoption of the state Constitution. The salaries allowed the circuit court judges are so inadequate ($2,500 each per year) that the Legislature presumably regarded it as a duty to make an allowance to each of the circuit court judges for such expenses as they must necessarily incur in performing their official duties.

It is contended by the circuit court judges that the amount allowed for expenses by the Legislature is not, in fact, adequate to reimburse them for their actual necessary expenditures in discharging the duties of their said office. Plaintiff’s contention is that it is immaterial, even if true, because, as contended, the Legislature is without power to make and expense allowance in a lump sum to any state .officer.

[2] We do not think it of airy importance in this proceeding whether or not the expense allowance of $75 per month to each of the circuit -court judges is inadequate to reimburse those officers for their actual necessary expenditures in discharging the duties of their office. For reasons given in Part I of this opinion we are convinced that it was within the power of the Legislature to allow expenses in a lump sum to each of the circuit court judges, that the amount of such allowance was for the determination of the Legislature, and that courts cannot, under any sound principle of law, substitute their judgment for that of the Legislature, or interfere with purely legislative acts, unless the amount allowed is so plainly and palpably in excess of any amount that could be incurred by the circuit court judges as to show upon its face, without argument, that the Legislature -did not and could not have intended the amount allowed simply for expenses.

It is unnecessary here to repeat the reasons for our conclusions; thejr are stated at considerable length in Part I of this opinion. • These conclusions necessarily require that the application for the writ of prohibition, in so far as it was intended to affect the rights of each of the several circuit court judges to receive $75 per month as an expense allowance, under chapter 159, Session Laws of 1919, should foe, and the same is, denied.

FART IV.

NULL, J.

In Part IV plaintiff in his petition alleges:

"That section 13 of chapter 21 of the Laws of 1921, being the general appropriation act, appropriates and sets aside the sum of eighteen thousand and four hundred ($18,400) dollars for the biennial period, beginning July 1, 1921, and terminating June 30, 1923, for salary of private secretary to the Governor, clerk hire, stenographers, stationery, office supplies, postage, railroad fare, rent, and' living expenses, and other traveling expenses and incidentals.”

“That heretofore vouchers, duly approved by the Governor, for the amount of seventy-five ($75) dollars per month, for rent of living rooms at the St. Charles Hotel, situate in Pierre (the capital), S. D. for the Governor and his family, have been honored by the defendant (State Auditor) herein, and warrants issued upon funds appropriated by section 2, c. 15, of the Session Laws of 1919, which funds were appropriated for rent, living, and other expenses of the Governor of the state.”

“That the appropriation of public funds for the rental of living rooms or a dwelling for the Governor of the state, and the payment thereof by the State Auditor, is without authority of law and is in violation of section 2, art. 21 of the state Constitution. That the salary of the Governor is fixed at three thousand ($3,000) dollars per year by the provisions of section 5318 of the South Dakota Revised Code of 1919, the maximum amount authorized and permitted 'by the provisions of said section 2, art. 21, of the state Constitution. That said allowance of seventy-five ($75) dollars per month for hotel rent of living rooms for the Governor of the state is a grant of a fee, perquisite, or emolument in violation of said constitutional provision, and is, in effect, an additional allowance or salary of nine hundred ($900') dollars per year paid to the Governor in excess of the salary authorized by the state Constitution.”

Then follow appropriate, allegations to the effect that the defendant, State Auditor, is about to issue warrants against the appropriation for the current biennial period in payment of vouchers approved by the Governor for rent of living rooms at the St. Charles Hotel.

To this petition the defendant, State Auditor, demurs on the grounds that said petition does not state facts sufficient to constitute a cause of action. Subsequent to the filing pf the petition the Hon. William ,H. M'cMaster, as Governor of the state of South Dakota, was permitted to intervene,. and he presented a return or answer to the petition in which he alleges that the petition does not state facts sufficient to constitute a cause of action, and — ■ ' ‘

“That the duties of your intervener as Governor of the state of South Dakota require his actual residence in the city of Pierre, S. D., where the capítol of said state is located, and that prior to his assuming his duties as Governor of said state, resided in the city of Yankton, Yankton county, S. D., and that the duties.incident to his said' office require him to change his actual residence to the said city of Pierre.”

The issues thus framed present the sole question: Is the act of the Legislature appropriating money to pay rent for rooms occupied by the Governor at the hotel in Pierre unconstitutional?

In the general appropriation bill passed at the 1911 session of the Legislature, the paragraph relating to expenses of the Governor read as follows:

“For salary of private secretary, clerk hire, stenographer, stationery, office supplies, postage, railroad fare, hotel expenses and other traveling expense and incidentals $5,300.” Laws 191T, c. 82, § 3.

In the 1913 appropriation bill the words “rent” and “living” were inserted between the words “hotel” and the word “expenses,” so that the paragraph reads:

■ “'For salary of private secretary, clerk hire, ~ stenographer, stationery, office supplies, postage, railroad fare, hotel and living expenses, rent and other traveling expenses and incidentals $6,000.” Laws 19x3, c. 23, § 3.

From 1913 down to the session of 1921, the form of the paragraph has remained substantially the same'. Since 1913 there have been four general elections, at which members of the Legislature have been elected.

With these facts before us we take up the question presented.

Section 2, art. 21, of the Constitution, reads as follows:

“The Governor shall receive an annual salary of two thousand five hundred dollars; the judges of the Supreme Court shall each receive an annual salary of two thousand five hundred dollars; the judges of the circuit court shall each receive an annual salary of two thousand dollars: Provided, that the Legislature may, after the year one thousand eight hundred and ninety, increase the annual salary of the Governor and each of the judges of the Supreme Court to three Thousand dollars, and the annual salary of each of the circuit court judges to two thousand five hundred dollars. The Secretar)' of State, State Treasurer and State Auditor shall each receive an annual salary of one thousand eight hundred dollars; the Commissioner of School and Public Lands shall receive an annual salary of one thousand eight hundred dollars; the Superintendent of Public Instruction shall receive an annual salary of one thousand eight hundred dollars; the Attorney General shall receive an annual salary of one thousand dollars; the compensation of the Lieutenant Governor shall be double the compensation of the state Senator. They shall receive no fees or perquisites whatever for the performance of any duties connected with their offices. It shall not be competent for the Legislature to increase the salaries of the officers named in this article except as herein provided.”

By chapter no, Session Laws of igoi, the salaries of the Governor and judges were increased to the maximum amount provided for in the above-quoted section of the Constitution.

Section i, art. 3, of the Constitution, declares that—

“The legislative power of the state shall be vested in a Legislature which shall consist of a Senate and House of Representatives," except that certain provisions are made for the initiative and referendum.

[x] There is no provision in the Constitution giving the judiciary supervisory power or control over the Legislature, so that so long as an act of the Legislature does not contravene some express provision of the Constitution, no matter how inconsiderate, illogical, or shocking such act may be, the judiciary of the state is powerless to interfere.

That the appropriation of money for the payment of the expenses incurred by state officials is the exercise of the legislative power is so well settled and commonly understood as not to be open to discussion. The appropriation to pay such expenses being the exercise of the legislative power, then the proposition must necessarily follow that the Legislature is vested with a discretion as to what expenses it will or will not provide funds for the payment of. This decision of the Legislature is final. If the Legislature fails to make reasonable provision for official expenses, the officers are without remedy, as the judiciary has no power of either appropriating public funds directly or of coercing the Legislature to make such appropriation.

On the other hand, when the Legislature makes lavish and extravagant allowances, the court is equally powerless to correct the error.

In the absence of constitutional limitations, inherent plenary power is vested in the Legislature in all legislative and political matters. Stephens v. Jones, 24 S. D. 97, 123 N. W. 705; State v. Central Lumber Co., 24 S. D. 136, 123 N. W. 504, 42 L. R. A. (N. S.) 804; A. M. Linseed Oil Co. v. Wheaton, 25 S. D. 60, 125 N. W. 127, 41 L. R. A. (N. S.) 149; Ohlwine v. Bushnell, 32 S. D. 426, 143 N. W. 362; State v. Brown, 40 S. D. 372, 167 N. W. 400; In re Watson, 17 S. D. 486, 97 N. W. 463, 2 Ann. Cas. 321.

[2,3] This brings us to the question: Is there an express (or necessarily implied) prohibition in the Constitution against the appropriation by the Legislature of public, funds for the payment of the rent for rooms occupied by the Governor at the hotel?

It will be noticed that the Governor actually occupies such rooms, and that the money is paid directly to the proprietors of the hotel on proper vouchers certified by the Governor. This case is to be distinguished from a case where a certain sum is appropriated to be paid the official whether he actually incurs the expense or not.

As we understand the argument of the Attorney General, it is that the payment of the room rental at the hotel is the payment of the personal and private expenses of the Governor, and therefore operates to increase his salary in contravention of that clause of the Constitution (article 21, § 2), whi-ch provides:

“It shall not be competent for the Legislature to increase the salaries of the officers named in this article except as herein provided.”

The court cannot presume that the Legislature intended to violate the Constitution; hence we cannot presume that this appropriation was intended by the Legislature as an increase of the Governor’s salary. As a co-ordinate branch of'the government, the court is 'bound to give full faith and credit to the act of the Legislature, and is bound to assume that the Legislature simply intended to pay an item of expense which, in its judgment, was a proper item of expense to be paid from the funds of the' state.

Let us see what the facts are: The Governor, at the time of his election, resided at the city of Yankton. There is no law requiring him to reside at the capital. The Governor could have continued his residence at Yankton and traveled back and forth between Yankton and Pierre and lodged at a hotel while in Pierre. His expenses incurred in such travel and lodging would certainly have been legitimate expenses to be paid by the state as expenses incurred incident to and in performance of his duties as Governor.

Now to avoid waste of time in travel and the expense incident to suc'h travel, it is deemed expedient to have the Governor reside at the capital. To do this he must maintain a place, of residence at Pierre in addition to his home in Yankton. The Governor does not derive any profit from the rooms occupied by him; on the contrary, the rooms are an additional expense incurred by him incident to the performance of his official duties.

There is no contention here that the $3,000 salary allowed the Governor was to be in full payment for both his services and expenses; hence an allowance for expenses, properly payable by the state, does not operate to increase the constitutional salary of the Governor.

[4] The prohibition against increasing salaries of public officers was not intended as a limitation upon legislative authority to provide for the expenses of .such officers. The fallacy of such a contention is apparent when we consider that in many cases the expenses of the officer exceed his constitutional salary.

That the allowance of expenses does not operate as an increase of salary is sustained by the following authorities: State v. Thomason, 142 Tenn. 527, 221 S. W. 491; Throop on Public Officers, 442; 29 Cyc. 1427, 1429; Briscoe v. Clark Co., 95 Ill. ; State v. Atherton, 19 Nev. 332, 10 Pac. 901, 910; Kirkwood v. Soto, 87 Cal. 394, 25 Pac. 488; Newman v. Lester, 11 Cal. App. 577, 105 Pac. 785; People ex rel. Follett v. Fitch, 145 N. Y. 261, 39 N. E. 972; State v. Sheldon, 78 Neb. 552, 111 N. W. 372; Ware v. Battle Creek, 201 Mich. 468, 167 N. W. 891, L. R. A. 1918E, 673; McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361, L. R. A. 1915E, 858, 872, Ann. Cas. 1917A, 1046; Milwaukee County v. Halsey, 149 Wis. 82-85, 136 N. W. 139; Russ v. Commonwealth, 210 Pa. 544, 60 Atl. 169, 1 L. R. A. (N. S.) 409, 105 Am. St. Rep. 825.

[5] The rule of law is well settled that the power of the court to declare an act of the Legislature unconstitutional is an. extraordinary power, and should only be exercised in a case free from all reasonable doubt. State v. Becker, 3 S. D. 29, 51 N. W. 1018; Bon Homme County v. Berndt, 15 S. D. 494, 90 N. W. 147; In re Watson, 17 S. D. 486, 97 N. W. 463, 2 Ann. Cas. 321; Insurance Co. v. Basford, 27 S. D. 164, 130 N. W. 44; McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361, L. R. A. 1915E, 858, Ann. Cas. 1917A, 1046.

We cannot say that the appropriation to pay the rent for rooms occupied by the Governor at the hotel is, beyond a reasonable doubt, within the- constitutional prohibition, and therefore the writ so far as Part IV is concerned, should be denied.

HAYES, P. J., dissents.

PAjRT V.

NjULL, J.

In Part V of the 'petition it is alleged that by chapter 84, Session Laws of 1920, the State Capital Commission was authorized and directed to prepare plans for a Governor’s home, to secure grounds by purchase or condemnation for a site for such home, and to prepare the grounds for building, and to present plans for the completed building and improvements at the next regular session of the Legislature. For this purpose the Capitol Commission shall use funds placed at its disposal by Chapter 322, Laws of 1919; that the Capitol Commission has acquired certain lands to 'be used as a site for a Governor’s home and is now neg'otiating, and will acquire by purchase or condemnation, certain other lands to enlarge and complete the site upon which it is intended that a Governor’s home shall be erected; that certain vouchers have been or are about to be presented to the State Auditor for the services of' a landscape architect in surveying said site, preparing and drafting ■ plans, and doing other detail work connected with such survey. ■

It is then alleged that said chapter 84,- Laws of 1920, is contrary to and in violation of the state Constitution. It is claimed that the purchase of a site for a Governor’s dwelling is in violation of section 2, art. n,- of the Constitution, which provides that taxes “shall be levied and collected for public purposes only;” that, the .furnishing, of a residence for the Governor is-the--use of public funds for a private purpose.

[1] In Part IV of this opinion we have discussed the validity of the appropriation for rents paid for rooms occupied by the Governor at the hotel. We reached the conclusion that such appropriation was legal and valid. All that we said on that branch of the case applies with equal force herb. If the Legislature may provide rooms for the Governor at a hotel, then why not acquire a dwelling to be used as a Governor’s dwelling?

[2] The acquiring and maintaining of public buildings is the exercise of purely legislative powers, with-which the court has no concern. The Constitution does not prescribe what public build.ings shall be provided, or the uses to which public buildings may be put. This lack of constitutional limitation or restriction leaves the whole subject entirely with the Legislature. ' Under these circumstances, when the Legislature, in the exercise of its discretion, provides for a public building for a public purpose, its decision is final and not subject to review by the courts.

[3'] This leads us to the sole question in this case, i. e.: Is an official residence for the chief executive a public building devoted to a public purpose? In- deciding this question we must consider the history and practice of governments such as ours. 'The United States has its White House and many of the states have their executive mansions.

The Supreme Court of Nebraska, in State v. Sheldon, 78 Neb. 552, 111 N. W. 372, in a similar case, said:

“The custom of furnishing an official residence for the chief executive officer of the government has been in force for very •many years in representative governments -such as ours. It is a matter of common knowledge that Great Britian provides an official residence for its Prime Minister, and, in fact, the practice is so well established and has 'been continued for so long a time that the name of the street in which the official residence is situated is often used as synonymous with the administration, and ‘Downing Street’ conveys an idea to a British subject as clear and well defined as the name of tile ‘White House’ does to an American citizen. This practice was followed upon the formation of the United States, and many of the states of the Union, recognizing the added dignity given to the office and other advantages to be derived from the residence of the chief executive officer being certain in location and convenient of access at all times, have provided official residences. for the use of the Governor of the state. Some of the states so providing a residence have similar restrictions in their Constitution, as exist in that of this state with regard to the acceptance of perquisites. Of course, this goes merely to show the meaning applied to such provisions by the respective Legislatures. It cannot be questioned that the Legislature had the power, the right, and the authority to purchase the property and to provide for its occupancy by the Governor. This was done in the exercise of its proper powers in behalf of what is deemed to be the public welfare, and its acts in that regard are not subject to review by any other department of the state government. There is no question, then, of legislative power involved.”

While the question of the propriety of providing an official residence for the chief executive is a legislative and not a legal question, yet the reasoning of the Nebraska court appeals strongly to our judgment.

The court said:

“It may be doubted whether the occupancy of this mansion does not impose upon the Governor larger expenditures than those which would be exacted from him by the occupancy of a more humble abode for which he paid the usual rent, and, in place of being an additional reward or compensation, it may in fact be, and probably is, an additional drain upon his recources. We agree with the Legislature that it is entirely in keeping with the proper administration of the government of the state, with due regard to the dignity of that high office, that the Governor be provided with an official residence, and that his occupancy of the same, required by law, is in no sense a-perquisite of office or of the nature of additional compensation.”

An examination of the legislation on this subject shows that our Legislature is proceeding with deliberation and care. It first provided for acquiring suitable land; it then provided for plans to be submitted to the next Legislature. It has not given the Capitol Commission carte blanche to spend the public money, but has kept the control of such expenditures in its own hands.

The expenditure being for a public building for a public purpose and authorized by the department of the state government having sole control of such matters, this court is without power to interfere, and therefore the writ, so far as Paid V is concerned, is denied.