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

I do not concur in the opinion of my Brother Mr. Justice SHARPE herein.

Defendants rely on two propositions of law to sustain their contention that the act in question, Act No. 5, Pub. Acts 1947, is void under the State Constitution (article 5, § 9, Mich. Const. 1908, as amended in 1928). First, that the rule expressiounius est exclusio alterius should govern the interpretation of the article of the State Constitution in question, and that since the Constitution makes express provision for the specific item of travel to and from the session of the legislature and no express provision for any other item of personal expense, all other personal expenses are excluded. Defendants' contention in that regard cannot be sustained. We have heretofore disposed of that question.

"The absolute, uncontrolled sovereign power of legislation, except as limited by the Constitution of the United States and of this State, rests in the legislature." Attorney General v.Marr, 55 Mich. 445, 450.

We quote from the syllabus (11) in Huron-Clinton MetropolitanAuthority v. Boards of Supervisors of Five Counties, 300 Mich. 1,3:

"The maxims of the law, expressio unius est exclusio alterius and expressum facit cessare tacitum, cannot be applied to the construction of provisions of State Constitutions enumerating powers of the legislature."

We now consider the second proposition of law advanced by defendants, that the word "perquisite" is to be construed to include reimbursement for actual living expenses and hence reimbursement for such expenses is forbidden by the provision of the Constitution in question.

"`Perquisite' means something gained by a place or office beyond the regular salary or fee. Wren v. Luzerne County, 9 Pa. Co. Ct. R. 22, 24, 6 Kulp, 37, 39." 32 Words and Phrases, 183.

Webster's New International Dictionary (2d Ed.), defines "perquisite" as follows:

"A gain or profit incidentally made from employment in addition to regular salary or wages, esp. one of a kind expected or promised; also, pay for work; income."

Mere reimbursement of actual expenses is neither gain nor profit; it is not pay for work, nor income.

In Ware v. City of Battle Creek, 201 Mich. 468 (L.R.A. 1918 E, 673), we construed an ordinance of the city of Battle Creek which provided:

"The city attorney shall receive an annual salary of $1,200, to be paid monthly and shall not be entitled to any fees or perquisites of office in addition to his salary, except actual expenses while engaged in the discharge of his official duties when out of the city."

In the Ware Case, the common council of the defendant city had authorized the payment of $40 per month to the city attorney for rent of office for his use as city attorney, which payment we upheld, considering that such payment was not a perquisite. In that case we said, p. 472,

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

See Taxpayers' League of Carbon County v. McPherson,49 Wyo. 251 (54 Pac. [2d] 897, 106 A.L.R. 767), in which the supreme court of Wyoming construed of art. 3, § 32 of the Wyoming constitution, which provides, so far as material to that case, "No law shall extend the term of any public officer or increase or diminish his salary or emolument after his election or appointment." The court in that case (p. 273), determined that statutory compensation for expenses necessarily incurred in performing the duties of an office is neither salary nor an emolument within the meaning of the quoted section of the Constitution of Wyoming and in reaching its conclusion the court quoted with approval from the Ware Case, supra.

See, also, State, ex rel. Payne, v. Reeves, 44 S.D. 568 (184 N.W. 993), and Christopherson v. Reeves, 44 S.D. 634 (184 N.W. 1015). In the Christopherson Case, a section of the State Constitution of South Dakota was involved, the important parts of which section are as follows, p. 642:

"The members of the legislature * * * shall receive for their services the sum of five dollars for each day's attendance during the session of the legislature, and five cents for every mile of necessary travel in going to and returning from the place of meeting of the legislature on the most usual route. * * * Members of the legislature shall receive no other pay or perquisites except per diem and mileage."

In the Christopherson Case, in upholding a statute of the State of South Dakota which provided for the payment of $200 to each member of the senate and house of representatives of South Dakota to cover the expenses of such members incident to their being away from home in the discharge of their duties, et cetera, the court said, p. 644,

"Under the familiar principle that the constitution is a limitation and not a grant, it follows that the legislature, not being forbidden by the constitution possess inherently the power to provide expense money, and the provisions of law recited in the petitioner's bill are not in conflict with this section of the constitution."

The Constitution of the State of Michigan requires attendance of the members of the legislature at its sessions. They must not take up their permanent residence at Lansing. If they are reimbursed for only the actual moneys paid by them for necessary meals and room while attending sessions of the legislature, with the cost of such living expenses rated at ordinary standards of living, they receive no perquisite, since they make no profit; they are simply repaid for expenses made necessary by the requirements of the Constitution. Neither can it be said that repayment of necessary and required actual expenses is compensation within the meaning of article 5, § 9, of the State Constitution in question. See State, ex rel.Weldon, v. Thomason, 142 Tenn. 527 (221 S.W. 491).

So far as concerns all questions urged against the act in question in this proceeding, Act No. 5, Pub. Acts 1947, we consider that that act was well within the power of the legislature to enact under the Constitution of this State. The writ prayed for should issue if found necessary. No costs are awarded, a matter of public interest being involved.