EBERLE v. NIELSON

TAYLOR, Justice.

The petitioners, W. D. Eberle, Representative from Ada County, Robert Doolittle, Representative from Bonner County, Vernon Daniel, Senator from Payette County, R. M. Wetherell, Senator from Elmore County, as such members of the current Thirty-fourth Session of the State Legislature, on behalf of themselves and others similarly situated, filed petition in this Court seeking a writ of mandate to compel issuance of warrants by the defendant, State Auditor, for payment of expenses incurred by them while serving as members of various committees of the legislature. They allege that funds were regularly appropriated for the payment of such expenses; that vouchers were regularly prepared and approved by the presiding officer of the respective houses, and were presented to and approved by the State Board of Examiners; and that the defendant had refused to draw warrants for the payment thereof on the ground that payment of such claims was not authorized by law.

Defendant, answering the petition, admits all of the allegations therein, and affirmatively alleges that § 67-412, I.C., purporting to authorize payment of such expenses, is in violation of Article 3, § 23, of the State Constitution. Section 67-412, I.C., enacted in 1951, is as follows:

The pertinent part of § 23, Article 3, of the Constitution provides:

In determining the constitutionality of a legislative enactment, fundamental principles must ever be kept in mind and rigidly observed. Statutes are presumed valid and all reasonable doubts as to constitutionality must be resolved in favor of validity. Noble v. Bragaw, 12 Idaho 265, 85 P. 903; Ingard v. Barker, 27 Idaho 124, 147 P. 293; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; Sanderson v. Salmon River Canal Co., Ltd., 45 Idaho 244, 263 P. 32; Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; In re Edwards, 45 Idaho 676, 266 P. 665; Chambers v. McCollum, 47 Idaho 74, 272 P. 707; City of Idaho Falls v. Pfost, 53 Idaho 247, 23 P.2d 245; State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649; State v. Peterson, 61 Idaho 50, 97 P.2d 603; Big Wood Canal Co. v. Unemployment Comp. Div. of Ind. Acc. Bd., 63 Idaho 785, 126 P.2d 15; State v. Groseclose, 67 Idaho 71, 171 P.2d 863; Boughten v. Price, 70 Idaho 243, 215 P.2d 286; Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 5 A.L.R.2d 1154.

Where a statute is susceptible of two constructions, one of which would render it invalid and the other would render it valid, the construction which sustains the statute must be adopted by the courts. Grice v. Clearwater Timber Co., 20 Idaho 70, 117 P. 112; State v. Morris, 28 Idaho 599, 155 P. 296, L.R.A.1916D, 573; City of Idaho Falls v. Pfost, 53 Idaho 247, 23 P.2d 245; State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649; State v. Peterson, 61 Idaho 50, 97 P.2d 603; Big Wood Canal Co. v. Unemp. Comp. Div. of Ind. Acc. Bd., 63 Idaho 785, 126 P.2d 15.

The burden of showing unconstitutionality of a statute is upon the party who asserts it, and invalidity must be clearly shown. Noble v. Bragaw, 12 Idaho 265, 85 P. 903; Gillesby v. Board of Com'rs, 17 Idaho 586, 107 P. 71; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; In re Edwards, 45 Idaho 676, 266 P. 665; Williams v. Baldridge, 48 Idaho 618, 284 P. 203; State ex rel. Macey v. Johnson, 50 Idaho 363, 296 P. 588; Curtis v. Pfost, 53 Idaho 1, 21 P.2d 73; Bannock County v. Citizens Bank & Trust Co., 53 Idaho 159, 22 P.2d 674; Boughten v. Price, 70 Idaho 243, 215 P.2d 286; Common School Dist. #2 v. District #1, 71 Idaho 192, 227 P.2d 947; Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 5 A.L.R.2d 1154.

It is the duty of the courts to uphold the constitutionality of legislative enactments when that can be done by reasonable construction. Scandrett v. Shoshone Co., 63 Idaho 46, 116 P.2d 225; State ex rel. Wright v. Headrick, 65 Idaho 148, 139 P.2d 761; State v. Evans, 73 Idaho 50, 245 P.2d 788; Grice v. Clearwater Timber Co., 20 Idaho 70, 117 P. 112; Continental Life Ins. & Inv. Co. v. Hattabaugh, 21 Idaho 285, 121 P. 81; State v. Morris, 28 Idaho 599, 155 P. 296, L.R.A.1916D, 573; J. C. Penney Co. v. Diefendorf, 54 Idaho 374, 32 P.2d 784; Safeway Stores, Inc., v. Diefendorf, 54 Idaho 407, 32 P.2d 798; Garrett Transfer & Storage Co. v. Pfost, 54 Idaho 576, 33 P.2d 743.

In construing our State Constitution there are also certain fundamental principles which must be recognized and given effect. Unlike the Federal Constitution, the State Constitution is a limitation, not a grant, of power. We look to the State Constitution, not to determine what the legislature may do, but to determine what it may not do. If an act of the legislature is not forbidden by the state or federal constitutions, it must be held valid.

This fundamental concept of the State Constitution is generally accepted throughout the United States, and is not questioned in these proceedings. It has always been the guiding principle of constitutional construction in this state. Some of the decisions of this Court, recognizing and applying it, are collected in the foot note.1

There flows from this fundamental concept, as a matter of logic in its application, the inescapable conclusion that the rule of expressio unius est exclusio alterius has no application to the provisions of our State Constitution.

This rule was again approved and quoted by the Supreme Court of California in Dean v. Kuchel, 37 Cal.2d 97, 230 P.2d 811.

This Court has also heretofore refused to apply the rule of expressio unius est exclusio alterius to the revenue provisions of the Constitution, as follows:

The rule was again urged upon the court in Diefendorf v. Gallet, 51 Idaho 619, 10 P.2d 307. After quoting the above paragraphs from In re Kessler and Independent School Dist. v. Pfost, Mr. Justice Leeper, speaking for the court, said:

See also: State ex rel. Todd v. Yelle, 7 Wn.2d 443, 110 P.2d 162; Myers v. Oklahoma Tax Commission, Okl. 303 P.2d 443.

Applying the foregoing rules and principles to the case before us, we find no limitation in § 23, Article 3, of the Constitution, forbidding the legislature to provide for the payment of expenses of its members. It expressly allows to each member $10 per day "for his services", and provides that such per diem shall not exceed $600 for any one session. It also allows "ten cents per mile each way by the usual traveled route." This is a lump sum allowance for travel. The section is silent as to any other expenses. It follows that the enumeration of an allowance for services and an allowance for travel, and the absence of any restrictive terms limiting the legislators to such allowances, leaves the legislature free to provide for the payment of other expenses necessarily incurred by its members in the discharge of their duties.

Looking to the statute, we are not advised by the record as to what is meant by "committee expenses". If it were made to appear that there were no necessary expenses incurred by committee members while acting as such, then it would be necessary to hold the allowance invalid as an attempt to augment the per diem compensation for services. On the other hand, if it is intended to cover board and lodging of committee members while in Boise, performing their duties during the legislative session, or any other necessary expense incurred in the performance of such duties, it would constitute an allowance which the legislature has authority to make, since it is not forbidden by the constitution. We cannot presume that the legislature intended to circumvent the constitution and to unlawfully augment the per diem of its members. On the contrary, we are required to presume that the legislature intended to comply with the limitations of the constitution, all presumptions being in favor of the validity of its acts. Furthermore, the burden is on the defendant, in challenging the constitutionality of the act, to show that the allowance is in fact an augmentation of either the per diem or mileage allowed, and thus violative of either or both of those limitations. No such showing is made or attempted. In such circumstances we must adopt the construction of the act which will sustain its validity, i.e., that the allowance of $5 per day to committee members is for expenses necessarily incurred in the discharge of their duties.

To construe the phrase "as committee expense" thus broadly is not beyond the scope of our judicial function. Our authority and duty in that regard is well stated in Smallwood v. Jeter, 42 Idaho 169, at page 184, 244 P. 149, 153, as follows:

In Knight v. Class A School District No. 2, 76 Idaho 140, 278 P.2d 991, 995, this Court was required to construe an ambiguous section of the school law. Mr. Justice Porter there extensively reviewed the precedents, and concluded that it was within the authority and duty of the Court in such cases to adopt a construction which "leads to a sensible and reasonable result and effects the manifest purpose of the amendment [act]."

Fixing the amount in a lump sum of $5 per day is tantamount to a finding by the legislature that each member of its committees will incur expenses in not less than that amount. Thus the legislature has declared that the allowance is for expenses and that the sum provided has been, or will be, expended for that purpose.

Nor can it be urged against the validity of the act that if $5 per day can be allowed for expenses, a greater sum exceeding actual necessary expenses could also be allowed, thus increasing the per diem for services, in violation of § 23, Article 3, of the constitution. The legislators are sworn constitutional officers of the state. It is not to be assumed that they would thus seek to violate the fundamental law. As a body they have broad powers and wide discretion to find and declare facts incident to legislative enactments, and the courts cannot interfere until it is clearly made to appear that the finding or declaration of the legislature is so unreasonable as to be clearly a violation of the constitutional limitation. The principle was well stated by the Supreme Court of South Dakota in State ex rel. Payne v. Reeves, 44 S.D. 568, 184 N.W. 993. In discussing a lump sum allowance made by the legislature of that state for the personal expenses of the judges of its supreme court, it was said:

The Kentucky Special Court of Appeals used the same language in a similar case. Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 5 A.L.R.2d 1154.

Defendant relies upon the decision of this Court in Peck v. State, 63 Idaho 375, 120 P.2d 820, 821. That case is distinguishable from this. There the legislature in 1941 appropriated $35,000 for actual and necessary expenses of its members "for subsistence and lodging while absent from their usual places of residence in the service of the State of Idaho, at a rate not exceeding five dollars ($5.00) per day". Claims were presented by members of that session and disallowed. The basis of the judgment dismissing the action is contained in the following language:

The action failed because the legislature had not passed an act entitling the members to the expense covered by the appropriation. In the present case, § 67-412, I.C., specifically makes the grant to each member, and the present session has made an appropriation to pay the claims.

It is true the court in that case applied the rule of expressio unius est exclusio alterius to § 23, Article 3, of the Constitution and said that the per diem and mileage allowed by that section was the limit of the amount to be received by the legislators for services and expenses. This holding was unnecessary to the decision reached. It is to be noted that two of the justices dissented in that case.

Another objection, which the court in the Peck case found to the expense allowance, was that the act therein considered was limited in its terms to the members of the legislature then in session and was not applicable to, and made no appropriation for, future legislators. As such it was a special law in violation of § 19, Article 3, of the Constitution.

The act before us, passed in 1951, is general, and made the allowance not only for the current session, but for all future legislators, and it has been acted upon and such expenses paid to the members of successive legislatures from that day to this.

In Collins v. Riley, 24 Cal.2d 912, 152 P.2d 169, 170, the Supreme Court of California had before it a situation quite similar to that at bar. The California constitutional provision allowed the legislators $100 monthly for services during the term, and mileage to be fixed by law, not exceeding 5¢ per mile. The legislature passed an act allowing its members "in addition to their salaries, their actual necessary traveling expenses." Claims were filed by members for meals and lodging while on duty at the capital. The court construed the term "traveling expenses" much more broadly, it would appear, than we have here construed the phrase "as committee expenses." It was conceded that "traveling expenses.", if regarded as "mileage", within the constitutional limitation, would be invalid, at least to the extent it exceeded 5¢ per mile. To save the act the court construed "traveling expenses" as intended to cover living expenses. We quote:

It is true there is some diversity of opinion among the courts on this issue. But, as stated by the annotator in 5 A.L.R. 2d 1182 at page 1185, the conflict is more apparent than real. Some of the contrary opinions are based upon constitutional provisions forbidding any other allowances than those made by the constitution itself. Such decisions are obviously not in point, and are of no help in our consideration of the issue, because we have no such restriction.

We conclude that the claims of petitioners are valid and must be paid. Other decisions supporting our conclusion are: State ex rel. Todd v. Yelle, 7 Wn.2d 443, 110 P.2d 162; Earhart v. Frohmiller, 65 Ariz. 221, 178 P.2d 436; State ex rel. Payne v. Reeves, 44 S.D. 568, 184 N.W. 993; Christopherson v. Reeves, 44 S.D. 634, 184 N.W. 1015.

It is ordered that peremptory writ issue.

No costs allowed.

PORTER, SMITH and McQUADE, JJ., concur.

KEETON, C. J., sat at the hearing but did not participate in the decision.