[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 523 This action involves the provisions of chap. 167, 1937 Sess. Laws, providing as follows:
"That the Speaker of the House of Representatives, . . . the Lieutenant Governor as President of the Senate, . . . are hereby authorized, directed and empowered to remain in Boise, Idaho, in their present official capacities, a sufficient length of time to complete the unfinished business of the Legislature, . . . That the rate of pay for such above-named officers . . . shall be the same as that which they received during the session of the Legislature." (Emphasis inserted.)
The sum of $4000. for salaries, and $4000. for expenses was appropriated to carry the chapter into effect.
Charles C. Gossett, lieutenant governor, and Troy D. Smith, now deceased, state representative from Custer county, respectively, president of the senate and speaker of the house during the 1937 session of the legislature, remained in Boise after the adjournment of the session and performed such duties and services pursuant to the above act and drew $330. and $315. respectively from the state for compensation therefor. These claims were approved by the State Board of Examiners. The state auditor instituted actions to recover back for the state said respective sums on the ground that payment was illegal. Demurrers in each case were filed and overruled and appellants answered. Motions to strike and demurrers to the answers, filed by respondent, were withdrawn after statement by counsel for appellants that the answers filed did not present any issues of fact but solely questions of law, and motions for judgment on the pleadings were substituted by respondent. The motions for judgment on the pleadings were granted and judgment was entered in favor of respondent and against appellants in each case for the entire amount of the respective claims plus legal interest. Appeals taken from the judgment have been consolidated by stipulation of counsel and approval of the court.
The assignments of error urge in the main that the *Page 527 court erred in overruling the demurrers to the complaints and in granting the motions for and entering judgments in favor of respondent; upon the ground that chap. 167, 1937 Sess. Laws is not unconstitutional; that the particulars in which the act was unconstitutional were not pointed out; that the board of examiners was vested with absolute power to determine rightly or wrongly the rejection or payment of the claims; and that the state having accepted the benefits under the statute is estopped from questioning its constitutionality.
We see no merit in appellants' proposition that the state is estopped, for the reason that the state of Idaho received no benefit from either the lieutenant governor or speaker of the house of representatives by reason of the services rendered after the session adjourned, excepting those benefits which such officers were already required to render to the state and for which a compensation in entirety was fixed. The statute under consideration, chap. 167, 1937 Sess. Laws, specifically empowered the lieutenant governor as president of the senate and the speaker of the house of representatives to remain in Boise "in their present official capacities" as president of the senate and speaker of the house of representatives "a sufficient length of time to complete the unfinished business of the Legislature." Art. 4, sec. 19, of the Constitution provides:
". . . The lieutenant governor shall receive the same per diem as may be provided by law for the speaker of the house of representatives, to be allowed only during the sessions of thelegislature. The compensations enumerated shall be in full forall services by said officers respectively, rendered in anyofficial capacity or employment whatever during theirrespective terms of office." (Emphasis inserted.)
Appellants urgently contend they were entitled to receive additional compensation for the benefits the state received by reason of the services they rendered to the state after the session adjourned. Appellants, in view of the foregoing provisions of the constitution, could not and did not render any additional services or benefits to the state for the reason that they had been compensated *Page 528 for all services rendered in any official capacity. In other words, it was the duty of these officers to do and perform all of their acts as speaker of the house and president of the senate for the compensation fixed by the constitution and any acts subsequently performed and for which they had already received compensation did not amount to additional benefit to the state. The state having received no benefits there is no question of estoppel here. It cannot well be affirmed that the state accepting services under an unconstitutional law, which services it was already entitled to receive, accepts benefits under such law so that it is estopped from questioning its validity. (Santa Cruz v. McKnight, (Ariz.) 177 P. 256.)
In each case it was alleged that the officer had received compensation in full for his services rendered in connection with his office for the biennium and further it is alleged that the services rendered by the officers after the close of the legislative session and for which compensation was claimed and paid were performed in their official capacity. In the Smith case it was further alleged in the complaint that the provisions of chap. 167, 1937 Sess. Laws, under which the officer allegedly continued to perform services, was unconstitutional and void. The two cases were consolidated for trial and issues joined and the particulars in which the act was alleged to be unconstitutional were fully presented to the court with authorities pro and con and it does not appear that the constitutional question was not duly raised and insisted upon. (16 C.J.S. 96.)
Appellants' proposition that chap. 167, 1937 Sess. Laws, is not unconstitutional is answered in unmistakable terms by the Constitution to the contrary. Art. 3, sec. 23, provides:
"Each member of the legislature shall receive for his services a sum not exceeding five dollars per day from the commencement of the session; but such pay shall not exceed for each member, except the presiding officers, in the aggregate $300. for per diem allowances for any one session; and shall receive each the sum of ten cents per mile each way by the usual traveled route. . . . The presiding officers of the legislature shall each in virtue of his *Page 529 office, receive an additional compensation equal to one half his per diem allowance as a member; . . ."
And as above related, art. 4, sec. 19, provides the lieutenant governor shall receive the same per diem as may be provided by law for the speaker of the house of representatives"to be allowed only during the sessions of the Legislature." To make it more certain and emphatic, if such be possible, this constitutional provision further provides that "Thecompensations enumerated shall be in full for all services bysaid officers respectively, rendered in any official capacityor employment whatever during their respective terms ofoffice." It is well settled that in construing the Constitution words are to be given their ordinary meaning. The constitutional provisions above referred to are clear and explicit and that portion of chap. 167, 1937 Sess. Laws, relating to further compensation for the speaker of the house and president of the senate for services performed after the adjournment of the session is in direct conflict with the Constitution.
An officer who claims and receives compensation in excess of the amount limited by the Constitution is liable in the amount of such excess in an action brought by the state to recover the illegal payments. (Anderson v. Lewis, 6 Idaho 51, 52 P. 163;Nez Perce County v. Dent, 53 Idaho 787, 27 P.2d 979; AdaCo. v. Gess, 4 Idaho 611, 43 P. 71; County of Ada v. Ryals,4 Idaho 365, 39 P. 556; Guheen v. Curtis, 3 Idaho 443,31 P. 805; McRoberts v. Hoar, 28 Idaho 163, 152 P. 1046.)
It is asserted that the board of examiners was vested absolutely with the power to determine rightly or wrongly the rejection or payment of these claims. As heretofore pointed out the compensation of the lieutenant governor and speaker of the house of representatives is fixed by the Constitution. Art. 4, sec. 18, provides:
"The governor, secretary of state, and attorney general . . . shall also constitute a board of examiners, with power to examine all claims against the state, except salaries or compensation of officers fixed by law. . . ."
The claims exempted from the board's examination are "salaries and compensation of officers fixed by law." (Const., art. 4, sec. 18.) *Page 530
There is no question of lack of good faith on the part of appellants in carrying out the provisions of the act in question, the sole and only question here being the determination of the constitutionality of the act.
It follows that the judgment should be affirmed and it is so ordered.
Costs awarded to respondent.
ON REHEARING (May 20, 1941)