The Act of 1927 (Gen. Acts 1927, p. 26) by whose authority certain expenses of the members of the Legislature are sought to be enjoined, provides for the payment of their reasonable expenses while in attendance upon the sessions of the Legislature, which expense shall, among other things, include stenographic work, telephone and telegraphic service, clerk hire, stamps, and like expenses.
With respect to the cases cited in the majority opinion, we find the following situation:
In Jones v. Hoss, 132 Or. 175, 285 P. 205, the opinion recites that the bill alleges that the warrants whose payment are sought to be enjoined "are not for the payment of officers, clerks, stenographers, stationery, postage, or other general and contingent expenses * * * or any part thereof." The court said that the limitation against personal expenses has no application to official or legislative expenses. Drawing the distinction between personal and official expenses, it is said that the latter "are those that are necessary to enable the Legislature to properly perform its functions, while those that are personal are those that must be incurred by a member of the Legislature in order to be present at the place of meeting — expenses for his personal comfort and convenience." That case only involved living expenses, such as board and lodging.
In State ex rel. Banker v. Clausen, 142 Wash. 450,253 P. 805, 806, there was a provision to pay each member $5 a day "for expenses incurred in attending the session of the Legislature at the state capital." The holding was that it showed "an attempt to withdraw money, appropriated for legislative expenses, for the personal use and benefit of theindividual members of the House" (italics supplied). The constitutional provision was similar to ours in all material respects. It was held to preclude an allowance for personal expenses, but not for official expense.
In Dixon v. Shaw, 122 Okl. 211, 253 P. 500, 504, 50 A.L.R. 1232, the inquiry only related to what was called purely personal expenses — hotel room rent and meals and other living expenses. It held that there was no inhibition against legislative expenses, and quoting from the Kansas case (State v. Turner, 117 Kan. 755, 233 P. 510) referred to such expense as being "whatever amount in its judgment is necessary therefor, under the prevailing conditions of life, [and] is a matter within the determination of the Legislature, and over which the courts can and would exercise no control," and that the distinction is that "legislative expenses are those that are necessary to enable the Legislature to properly perform its functions, while those that are personal are those that must be incurred by a member of the Legislature in order to be present at the place of meeting * * * expenses for his personal comfort and convenience."
In Peay v. Nolan, 157 Tenn. 222, 7 S.W.(2d) 815, 819, 60 A.L.R. 408, the same question was involved and the same legal result reached, with this additional thought that "To sustain an appropriation in gross as an *Page 75 allowance for expenses and not a forbidden increase of compensation, the sum must be within such reasonable limits as to authorize the conclusion that the sum in gross might be covered by a certified statement of the official expenses incurred by the designated beneficiary," but if so large as to show a purpose to increase compensation, without regard to such actual expenses, it is in violation of the Constitution, similar to ours in that respect. And $750 in gross for seventy-five days was an increase in compensation, though declared to be for official expense.
In another Tennessee case (Peay v. Graham, 162 Tenn. 153,35 S.W.(2d) 568), the act appropriated $100 to each legislator "for stenographic hire and other extraordinary official expenses necessarily incurred by each member" at a twelve-day special session, and declared "as a fact that every member * * * has expended, at this extra session, at least the amount above set out for the official expenses above mentioned." It was held that it could not be reasonably assumed that each member incurred such an amount for official expense. But the court clearly and emphatically declared that the members of the Legislature may be reimbursed for their official expenses such as they may legitimately incur to be ascertained and determined by such reasonable method as its wisdom may suggest.
In Ashton v. Ferguson, 164 Ark. 254, 261 S.W. 624, the act appropriated $100 to each member for stamps, telephone, telegraph, and other necessary expenses. The Constitution provided that they "shall receive no compensation, perquisite or allowance whatever, except as herein provided." It was held to be in plain violation of the Constitution, and distinguished from State v. Thomason, 142 Tenn. 527, 221 S.W. 491, on account of the difference in the clauses of the Constitution; Tennessee not having a similar clause to that just quoted in Arkansas.
In Re Advisory Opinion, 90 Fla. 708, 107 So. 366, the allowance was "an additional amount for necessary extra expenses not to exceed four dollars per day." It was merely said that it was in excess of the limitations in the Constitution. The Constitution had provisions similar to ours. We note that this was paid regardless of the official expenses of the members incurred or paid by them.
The cases of State ex rel. Fox v. Raine, 49 Ohio St. 580,31 N.E. 741; Fergus v. Russel, 270 Ill. 304, 110 N.E. 130, Ann. Cas. 1916B, 1120; Terrell v. Middleton, 108 Tex. 14,191 S.W. 1138, 193 S.W. 139; Leckenby v. Post Printing Publishing Co.,65 Colo. 443, 176 P. 490, relate to the subject in general terms, and do not aid otherwise in reaching the result.
In the case of State v. Thomason, 142 Tenn. 527,221 S.W. 491, 495, with a constitutional provision similar to ours, an act appropriated $150 to each member "for stenographic work and other necessary expenses." Each member was shown to have incurred expenses for stenographic hire, postage, stationery, and attendance upon committees. It was claimed that because the appropriation also covered other expenses, that it attempted to include personal and living expenses. It was said that: "It is always to be presumed that the Legislature acted in good faith and within constitutional limits; and this declaration of the Legislature is a conclusive finding of fact and imports a verity upon its face which cannot be impugned by litigants, counsel, or the courts, but is absolutely binding upon all. 12 Corpus Juris, 799, 800, 6 Rawle C. L. 112," and cites some Tennessee cases.
This means that because the act included other expenses, it did not mean personal living expenses, but only official expenses. We have shown that in later cases in that court the rule was limited so as not to apply if the amount was so exorbitant as to manifest a purpose to evade the constitution, and include more than official expense.
From all of this, it is clear that the Legislature may provide for the payment of reasonable official expense, but not that which is personal, as defined in the cases cited.
When in our Pickett Case, 24 Ala. 91, it is said that the per diem allowance was intended for compensation and expense, it meant personal expense. Expense of travel, mileage, is a personal expense. Its inclusion would not exclude official expense, which is based on a different principle.
We note that no amount in gross is fixed, but only a maximum of $4 per day (now $3, Acts of Special Session 1932, p. 48). The items embraced are, "reasonable expense incurred by him because of and while in attendance upon the sessions of the legislature, which expense shall, among other things, include stenographic work, telephone and telegraph service, clerk hire, stamps and like expense." My view is that when properly interpreted, this was not intended to include personal expenses as defined in the cases cited above, because, for one reason, the doctrine of "ejusdem generis" seems applicable in this connection. Under that principle, "where general words follow the enumeration of particular classes of persons or things the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated." 59 Corpus Juris, 981; State v. Western Union Tel. Co., 196 Ala. 570, 72 So. 99; Martin v. State, 156 Ala. 89,47 So. 104. But if its terms, when properly construed, should be held to include personal expense, it is simply invalid to that extent.
The bill was filed before the last special session convened and in anticipation of its sitting, before any claim for contemplated expense was or could be made by any member under the act of 1927, as amended in 1932. *Page 76 Its purpose is to prohibit payment to the members of any sum on any account as authorized by that act, even though such amounts be only for legislative, not personal, expenses. All authorities cited in the majority opinion agree that legislative expense may be provided without violating the constitution.
We cannot assume, and the bill does not allege, that all legislative expense will be, or has been, otherwise provided, and that the expense accounts of members will include personal items. It is not alleged that the members will not in the future act in good faith, but will improperly include personal expense items. This would not be a proper assumption or inference, even if members may have in past sessions misunderstood their rights and included items of personal expense with the approval of their respective presiding officers.
The bill does not deal with a proposed violation of the legal authority of the Act of 1927, but deals with the validity of the Act in its entirety. The act is not invalid to the extent that it provides for legislative expense. If it provides also for personal expense, it is only invalid to that extent. It is quite different from one which fixes a sum in gross, which includes expenses of both kinds, so that the legitimate cannot be separated from that which is illegitimate. If its language is broad enough to cover illegitimate items, the proper judicial attitude toward it is simply to hold that those which are illegitimate shall be excluded, if any, but not to strike down the act and prohibit the withdrawal of legitimate items of expense because it may be feared that others will also be included. On this point I cannot concur in the majority opinion, but I do in other respects.