State ex rel. Wattam v. Poindexter

183 N.W. 852, 48 N.D. 135, 1921 N.D. LEXIS 20

Opinions

STATEMENT

Bronson, J.

The relators seek to compel the State Auditor to issue certain warrants. They have appealed from an order sustaining a demurrer to the petition for mandamus.

This petition alleges, in part, that on January 29, 1921, the House of Representatives adopted a resolution for the appointment of a special House committee to consider an audit of the state bank and state industries and to secure such information and data as was desirable; it empowered the committee to procure such legal assistance, such accounting experts, and such other expert and other aid and assistance as the committee should deem necessary and advisable, and granted further, to such committee, the power to summon witnesses and take testimony; that, pursuant to such resolution, a committee of nine members was appointed by the Speaker; that it thereafter organized and employed the relator Wattam as its reporter, and the other relators as stenographers, to aid and assist in the investigation; that such relators qualified, took the same oath of office as provided for legislative employees, and performed the work assigned to them by the committee; that, on March 4, 1921, this committee returned to the House its report, including a transcript of the testimony taken, the minutes of the meetings had, and a certified statement showing the persons employed and their compensation as allowed, together with individual itemized vouchers for such persons and expenses incurred; that then the House by resolution in all things . accepted and approved the report and discharged the committee; that, pursuant thereto, the Speaker and chief clerk of the House examined and certified the statement of the employees and expenses of such committee, and that such statement, together with itemized vouchers of individual and particular items, was filed on March 5, 1921, in the office of the State Auditor; that on March 22, 1921, demand was made upon the State Auditor to issue warrants to relators for the respective amounts due for such employment, and that the State Auditor, in violation of his duties, has refused so to do; that there is available and unexpended in the legislative appropriation for per diem of officers and employees of the Legislative Assembly approximately $4,692.40, and for printing, miscellaneous expenses, and supplies of such Legislative Assembly approximately $22,257.97. The expense account attached to the petition shows a total of $14,894.38: for supplies, $107.70; for stenographers, comprising the bills of relators herein, $2,197.50; for witnesses, $637.90; for other employees, including investigator, marshals, and accountants, $3,951.28; for counsel, comprising the bills of Attorneys Murphy and Sullivan, $8,000. This expense account is also verified as correct and true by the chairman and secretary of this committee.

The Senate did not concur in the resolution appointing the audit committee nor in the resolution adopting the report and approving the expenses incurred.

CONTENTIONS

The, petitioners, the appellants herein, contend that under the Constitution (§ 48) each house-possesses in addition to the specific powers mentioned in the Constitution, all other powers necessary and usual in the Legislative Assembly of a free state; that each house accordingly possesses inherently full and ample power to function as a branch of the Legislative Assembly, to appoint committees, to gather information, and to carry on investigations and other work incident to the work of the legislative body; that a committee of such legislative branch, properly appointed, may conduct the proceedings necessary; that it may incur expenses properly a charge against the funds of the state as though they had been contracted by the House, subject only to the constitutional limitation that there must exist an appropriation therefor; that neither prior Legislatures nor the executive department can curb or restrict these powers; that the legislative acts provide an orderly way of designating the employees of each house; that § 34, C. L. 1913, enumerating legislative employees and their compensation, does not restrict this power; that, pursuant to § 35, C. L. 1913, each house possesses the right by resolution to employ and pay such other employees as it might designate by resolution; that the work of this special house committee was properly a legislative function; that the petitioners, being, in fact, legal House employees, are entitled to be paid out of the legislative appropriation available either for miscellaneous legislative expenses or for the per diem of officers and employees. '

The respondent maintains that the petition does not affirmatively show the appointment or the existence of the committee for a proper legislative purpose; that there exists neither constitutional nor statutory authority for the appointment of the relators as employees of such committee and for the payment of their salaries and expenses as such; that, pursuant to the Constitution, there exists neither express nor implied power for one branch of the Legislative Assembly to hire employees and to pay for their services, in the absence of legislative act or the concurrence of the other branch of the assembly; that it was competent and proper for the Legislative Assembly to provide specifically for legislative officers and employees and for their compensation; that it has so done pursuant to § 34, C. L. 1913; that § 35, C. L. 1913, does not permit the employment of stenographers, clerks, reporters, expert accountants, and lawyers by a committee appointed by the House; that, so far as § 35, C. L. 1913, delegates to the House the right to hire employees other than those mentioned in § 34, it must be construed to relate to employees of the same class, and not to delegate the further authority to a committee appointed by the House the power to appoint such employees. That furthermore, pursuant to § 42, C. L. 1913, the expenses of an investigating committee are payable only when authorized by the entire Legislative Assembly.

DECISION.

The questions presented by the contending parties are res integra in this jurisdiction. To what extent is the power of one branch of the Legislative Assembly, wlhen acting alone and without the concurrence of the other, restricted by the Constitution, or subservient to legislative enactment? The power to create an office, to hire public employees, and to create obligations of the state to be paid through the exercise of the taxing power is distinctly an expression of the sovereign will, legislative in its character. It is true that this court has heretofore held, concerning constitutional construction, that all governmental power not lodged elsewhere by the Constitution resides in the Legislative Assembly; that this assembly may exercise any power not denied to it by the Constitution of the state. State v. Boucher, 3 N. D. 389, 409, 410, 56 N. W. 142, 21 L.R.A. 539. This principle, of course, is now subject to the initiative and referendum powers of the people expressly reserved, pursuant to recent constitutional amendments. The Constitution, however, vests this legislative power in the Legislative Assembly. Article 15, Amend. Const. It also provides that the Senate and House jointly shall be designated as the Legislative Assembly. § 52, Const. This legislative power, to evidence its expression, requires the independent and concurrent action of each house. §§ 58, 65, 79, Const. It may not be evidenced by the joint action of both houses acting as one body. Each house must act independently as a separate body. Accordingly the possession of a broad governmental power in the Legislative Assembly beyond the express grant thereof in the Constitution does not serve measurably to aid in construing the powers of each house alone, when the Constitution expressly requires the expression of the legislative power to be by the concurrent and independent action of both branches. As stated in State v. Guilbert, 75 Ohio St. 1, 78 N. E. 931, 934, the legislative power, whatever may be the extent of that power, which is conferred upon the assembly, is not expressly delegated to a part of the assembly. The inherent or implied power possessed by both houses is not possessed by one when acting alone. Ex parte Caldwell, 61 W. Va. 49, 55 S. E. 910, 912, 10 L.R.A. (N. S.) 172, 11 Ann. Cas. 646. Recurrence therefore must be had to the express provisions of the Constitution in order to establish either express or inherent powers existent in either house when acting alone.

Section 47 of the Constitution provides that each house shall be the judge of the election returns and qualifications of its own members. Section 48 provides that each house shall have the power to determine the rules of proceeding and punish its members or other persons for contempt or disorderly behavior in its presence and to protect its members against violence, the offers of bribes or private solicitation, and with the concurrence of two-thirds, to expel a member and shall have all other powers necessary and usual in the Legislative Assembly of a free state. These are the pertinent provisions of the Constitution expressly granting peculiar powers to each branch of the Legislative Assembly.

Upon these constitutional provisions, accordingly, the question arises of the authority of one branch of the Legislative Assembly, as a constitutional power, to select its employees, and determine their compensation. It is to be noted that express power in the Constitution is not granted to each house to appoint of designate its own officers and employees and to fix their salaries. Neither is there any restriction in the Constitution upon appointment of such employees or the determination of their salaries. Some state Constitutions expressly provide for and restrict the employees and their salaiies. See James v. Cromwell, 129 Ky. 508, 112 S. W. 611; Walker v. Coulter, 113 Ky. 814, 68 S. W. 1108. Some Constitutions directly authorize each branch of the Legislative Assembly to choose its own officers. Tenny v. State, 27 Wis. 387; State v. Guilbert, supra. Our sister state of South Dakota has an express constitutional provision granting authority to each house to choose its own officers and employees and fix their pay, except as otherwise provided in the Constitution. Article 3, § 9, Const. S. D. The only provision of our Constitution concerning the officers of the Legislative Assembly and their compensation is § 45, which provides that each member shall receive as compensation $5 per day and 10 cents per mile of necessary travel. The power of each house, therefore, to select its public employees and determine their salaries must exist impliedly or inherently under the provisions quoted. Ordinarily the powers granted to each house in the Constitution are not to be extended by construction; in other words, the maxim is frequently applied, “Ex-pressio unius est exclusio alterius.” State v. Guilbert, supra; Ex parte Caldwell, 61 W. Va. 49, 55 S. E. 910, 912, 10 L. R. A. (N. S.) 172, 11 Ann. Cas. 646. Thus a constitutional provision granting to each house specific powers concerning contempt is also a limitation upon the powers to punish for contempt. See Kilbourne v. Thompson, 103 U. S. 168, 26 L. ed. 377; 386, 389. See 7 Ann. Cas. note 877. So a constitutional provision providing that a Legislature may punish by imprisonment any person not a member obstructing its proceedings places a limitation upon its power to punish for contempt. Ex parte Wolters, 64 Tex. Cr. R. 238, 144 S. W. 531, 583, 585) Ann. Cas. 1916B, 1071. If the provision of § 48 of the Constitution properly means that each house has all other powers necessary and usual in each branch of a Legislative Assembly, much force would be added to the contention of the petitioners that there exists power for each house to select its own officers and employees and to fix their salaries. It may be noted, however, that the provision quoted refers to the powers necessary and usual in the Legislative Assembly. This means the power and the action of both the Senate and the House. In a former Constitution of Ohio there was a clause which provided that each house should have all powers necessary for a branch of the Legislature of a free and independent state. In a later amended Constitution the provision was that each house should have all of the powers necessary to provide for its own safety and the undisturbed transaction of its business. In State v. Guilbert, 75 Ohio St. 78 N. E. 931, 935, the court noted that there was a much broader grant of power in the former constitution than in the latter, and that the later provision operated as a limitation upon the powers of each house. If the contentions of the petitioners are recognized to their full extent, the action of one branch of the Legislative Assembly in selecting its officers and employees and determining their salaries is paramount to any expression of the legislative power by the Legislative Assembly, or through legislative enactment otherwise designating the officers and employees of each house and their salaries. To the contention that each house must necessarily possess the inherent and implied power to designate its own employees and fix their salaries without interference by the other house, or by legislative enactment, in order to give it the ability to function and perform its duties, the answer may be made that the sovereign expression of the people is to be found in the constitution and legislative enactment pursuant thereto, and to the concession made that under the express provision of the constitution, salaries may not be paid to public employees of each house unless there exists an appropriation by legislative enactment. See Ex parte Wolters, 64 Tex. Cr. R. 238, 144 S. W. 531, 586, Ann. Cas. 1916B, 1071.

In specific language the Constitution grants to the Legislative Assembly the exercise of legislative power. This is an express grant of power. 'When expressed, this legislative power is paramount, unless contrary to constitutional provisions. It must be apparent that this legislative power extends to the appointment of officers and employees of each branch of the Legislative Assembly and to the fixing and determination of their salaries unless there be a constitutional provision to the contrary. Accordingly it would appear that the voice of the sovereign will, expressed either in the constitution or in legislative enactment pursuant to express constitutional power, is paramount to any action of either legislative branch operating contrary thereto. This does not imply that each branch of the Legislative Assembly may not appoint committees to investigate and otherwise for purposes of its legislative undertakings as an independent body. But it does necessarily follow that the constitutional restrictions specifically stated apply, and that the expression of the legislative will through legislative enactment by both branches of the Legislative Assembly as such is paramount and superior to independent action of either branch. Otherwise one branch of the Legislative Assembly might override through its independent action constitutional provisions and the expression of the sovereign will through such constitutional provisions in a valid legislative enactment. The proposition that a branch of the Legislative Assembly, although a lawmaking body, is itself subject to regulations by law and subject to constitutional provisions permitting expression of the sovereign will through legislative enactment, seems to be well recognized by the authorities. State v. Wallichs, 14 Neb. 439, 16 N. W. 481; Cook v. Auditor, 129 Mich. 48, 87 N. W. 1037; In re Chapman, 17 Sup. Ct. 677, 166 U. S. 661, 41 L. ed. 1154; Kilbourne v. Thompson, supra; State v. Guilbert, 75 Ohio St. 1, 78 N. E. 931. The Legislative Assemblies of this state have recognized this principle. Legislative enactments provide that each house may punish by imprisonment for contempt and breach of' its privileges or the privileges of its members, § 29, C. L. 1913; that every person guilty of a contempt shall also be guilty of a misdemeanor, § 30, C. L. 1913; that a person summoned as a witness before either branch of the Legislative Assembly and before any committee authorized to summon witnesses who refuses to attend or- who refuses to testify shall be guilty of misdemeanor. §§ 9333, 9334, C. L. 1913. A legislative enactment provides legislative officers and employees and for their compensation (§§ 34, 35, C. L. 1913); for methods of auditing and payment of salaries for such officers and employees (§ 37, C. L. 1913) ; likewise for' a continuing appropriation for mileage and per diem of legislative members and the per diem of officers and employees thereof and for the expenses of the investigating committees when authorized by the Legislative Assembly, including postage, express, and other miscellaneous expenses, § 42, C. L. 1913. Again, a legislative enactment, in the general appropriation bill, provides an appropriation by law to cover such items of mileage and per diem, salaries of officers and employees, and expenses. Chap. 5, Sp. Sess. 1919. It would appear that these legislative acts are valid and constitutional expressions of the sovereign will binding upon each branch of the Legislative Assembly as well as upon the citizens and people of this state.

The fact that different legislative bodies in this state ■ have at different times in their separate branches provided by resolution for increase in the number of employees or in the amount of pay or have otherwise provided for the payment of expenses such as in a contest case does not furnish a legislative construction in favor of the possession of inherent powers in each branch of the Legislative Assembly contrary to the expression of the legislative enactment duly enacted by the Legislative Assembly. The legislative enactments themselves furnish a criterion upon legislative construction and the acts of individual branches of the Legislative Assembly in connection therewith furnish further legislative construction in support of such legislative enactments. The questions therefore are now presented: (i) Was there a legislative enactment covering, the employment and the payment of the employees of this special House committee? and (2) Was there a legislative enactment providing for an appropriation and the method of disbursing such appropriation in connection with such employees? There can be no question that there is a legislative act covering the officers and employees of both branches of the Legislative Assembly, § 34, C. L. 1913. There can be no question again that under § 35, C. L. 1913, no employees of the Legislature other than those provided in § 34 shall be paid except by a resolution of the Senate or of the House. This implies that there may be other employees, and also -that their pay may be fixed by a resolution of either branch. This section therefore does not negative the right to employ additional help. The contention of the respondent that the resolution shows that the investigating committee was not for proper legislative purposes should be denied, because it is to be presumed that such committee would function and has functioned as a proper legislative investigating committee until the contrary be made to appear. The contention likewise of the respondent that the committee itself employed this help, and that this legislative power could not be delegated to a committee, is answered by the two resolutions of the house which authorized the committee and fully ratified all of its actions both in the investigation had and in the help employed and expenses incurred. The crucial question remains, however, whether there exists a legislative enactment appropriating moneys for the expenses of such investigating committee, and providing the method by which such appropriation shall be disbursed. The petitioners concede that there must exist an authorized legislative appropriation by law for such purposes pursuant to constitutional requirements. The question of the supreme authority of a legislative enactment is involved when it concerns the means or method of disbursing such appropriation as against the contention of the petitioners that there exists an inherent power in the house to appoint such committee and to incur expenses therefor, which must be paid provided there exists any legislative appropriation within the purview of the legislative functions of either branch of the Legislative Assembly. As heretofore stated, § 42, C. L. 1913, appropriates as a continuing appropriation moneys to pay the mileage and per diem of the members of the Legislative Assembly; the per diem of officers and employees of the Legislative Assembly; the expenses of investigating committees when authorized by the Legislative Assembly; necessary postage, express, and other miscellaneous expenses. Chap. 5, Laws Sp. Sess. 1919, recognizes this legislative act and makes it definite by providing specifically a definite amount for the mileage and per diem of members and for the per diem of officers and employees and for printing and miscellaneous expenses, etc. Section 42 provides an authority for the items of these expenses. Chap. 5 makes the same definite as a legislative appropriation in accordance with constitutional requirements. Section 42 is neither impliedly, nor expressly repealed by the general appropriation act. See State ex rel. Birdzell v. Jorgenson, 25 N. D. 539, 142 N. W. 450, 49 L. R. A. (N. S.) 67. Section 42 specifically provides for the expenses of investigating committees when authorized by the Legislative Assembly. No provision is found in a legislative act providing for the payment of, or for an appropriation for, the expenses of an investigating committee when not authorized by the Legislative Assembly. The Legislative Assembly, as the Constitution states, is composed of both a house and a senate. It appears from the petition herein that the petitioners were employees of this House investigating committee. It appears that the expense incurred was an expense of this investigating committee. It appears further that the petitioners were appointed by this investigating committee, that their duties were concerned with this investigating committee, and that their recognition by the House as a body was had through a resolution adopting the report of this investigating committee wherein the moneys due them for work in behalf of this committee were embodied. The Legislative Assembly neither authorized the appointment nor the expenses of such investigating committee. It follows, therefore, in accordance with the discussion herein had, that there exists no legislative appropriation and no legislative authority for the disbursement out of the balance of funds appropriated of moneys for the petitioners.

The action of the trial court in sustaining the motion to quash was therefore proper, and its order should be affirmed.

Robinson, C. J., concurs.