Appellants have filed a petition for rehearing, which has been granted; counsel for the parties litigant have made oral arguments and filed briefs on rehearing and we have given the cases further consideration.
Counsel for appellants, in their brief on rehearing, say:
"In a final analysis of this case there is but one point involved and that is whether or not members of a legislature (or any public officer) can draw pay from the state for services performed, which are not germane to his office; this would require the court to determine whether or not the duties prescribed for the Speaker and Lieut. Governor in Chapter 167 of the 1937 Session Laws (omitted portion of that act in present opinion of the court) are germane to the office."
Appellants rely on the rule stated in Mechem On Public Officers, sections 862 and 863, as follows:
"Sec. 862. Can not recover extra Compensation for added or incidental Services. — An officer who accepts an office to which a fixed salary or compensation is attached, is deemed to undertake to perform its duties for the salary or compensation fixed, though it may be inadequate, and if the proper authorities increase its duties by the addition of others germane to the office, the officer must perform them without extra compensation. Neither can he recover extra compensation for incidental or collateral services which properly belong to or form a part of the main office. An express contract to pay such extra compensation or an express allowance of it is void.
"Sec. 863. But may recover for Services in independent Employment. — 'But this rule nevertheless,' it has been *Page 531 said, 'has its limit. It does not follow from the principles laid down that a public officer is bound to perform all mannerof public service without compensation because his office has a salary annexed to it. Nor is he in consequence of holding an office rendered legally incompetent to the discharge of duties which are clearly extra-official, outside of the scope of his official duty.'
"Where, therefore, a public officer is employed to render services in an independent employment, not germane or incidental to his official duties, as where the mayor of a city, who is also an attorney at law, is, without fraud or collusion, employed by the common council to defend a suit against the city, or a police justice is employed to revise the city ordinances, or a receiver of public moneys is employed to assist in disposing of Indian lands, he may recover for such services."
Appellants' counsel further say in their brief on rehearing:
"Following the above rule in the matter of the cases at bar, it is incumbent upon this court to determine whether or not the duties prescribed in said Chap. 167 are germane to the office of Speaker and President of the Senate in order to render a true decision in these cases. In other words, it is for the court to say whether or not each of the following duties are germane to the office of speaker or Lieut. Governor, to-wit;
"Prepare the legislative journals,
"Index the same,
"Complete the enrolling of bills,
"Indexing all laws, resolutions and memorials enacted during the session,
"Complete any unfinished legislative work of any character;
"Take inventory of Legislative furniture.
"Supervise and employ the clerical help to assist in such work.
"It should require no argument or authorities for the court to know that the actual work of the legislators as such ends with the adoption of the motion to adjourn sine die, — whatever remains to be done after that is purely manual labor. *Page 532
"The court attempted to avoid passing upon this matter in the opinion as written, so we would surmise, because all of it was omitted and asterisks substituted therefor; but the court is very likely going to be called upon to pass upon this matter in another case even if it still insists on evading doing so in this one, and for the convenience of the court we attach hereto copy of H.B. 262 [362] of the 26th session, which is the clean-up bill of the session just adjourned, and it will be noted that it differently worded in that 'in their official capacities' is omitted and likewise it does not refer to unfinished business of the legislature. The copy of H.B. 262 [362] is marked 'Exhibit A' and hereby made a part of this brief."
Should a case come before this court involving the validity of House Bill No. 362 of the Twenty-sixth Session of the Legislature (1941 Session Laws, chapter 173, page 346), being what counsel refer to as "the clean-up bill of the session just adjourned," we will not attempt to avoid passing on the validity of that act, nor have we attempted, nor do we now attempt to evade deciding any question presented by counsel in these cases, which is necessary to be decided in order to determine the validity of the legislative act here under consideration.
The constitutional provisions, quoted in our original opinion, are decisive of the question of the validity of Idaho Session Laws, 1937, chapter 167, page 272, so far as it relates to compensation paid to the lieutenant governor, as president of the senate, and to the speaker of the house of representatives, in addition to the maximum amounts specified in the constitution which they might receive, from the state, for their services, during their respective terms of office. That is the question presented by the appeals in these cases.
In order that the petition for rehearing may be fully disposed of, we here quote section 1 of chapter 167 in full, without evasion, omission, or asterisk:
"Section 1. That the Speaker of the House of Representatives, the Chief Clerk of the House of Representatives, the Lieutenant Governor as President of the Senate, and the Secretary of the Senate are hereby authorized, directed and empowered to remain in Boise, Idaho, in *Page 533 their present official capacities, a sufficient length of time to complete the unfinished business of the Legislature in the preparation of the journals, indexing the same, completing the enrolling of bills, indexing all laws, resolutions and memorials enacted or adopted by this session, and to complete any and all legislative work of any character remaining to be done at the close of the Twenty-fourth Legislative session, and to take inventory of Legislative furniture. That the said Speaker of the House and Lieutenant Governor as President of the Senate, be and they are hereby authorized and empowered to retain, appoint and employ so many of the attaches and employees of either House as may be necessary, in their judgment, to finish said work, and incur said other expenses for supplies or materials as may be necessary to complete said work. That the rate of pay for such above-named officers and attaches shall be the same as that which they received during the session of the Legislature."
It is our opinion that the actual work of preparing legislative journals, indexing them, completing the enrolling of bills, indexing all laws, resolutions and memorials enacted during the session and taking inventory of legislative furniture is not germane to the office of speaker of the house of representatives or to the office of lieutenant governor, in his capacity as president of the senate, and that employing clerical help, and supervising the employees of the legislature in the performance of their work is germane to said offices.
The performance, by the presiding officers, of their official duties in completing unfinished legislative work is, of course, germane to said offices. Article III, Section 21 of the Constitution provides: "All bills or joint resolutions passed shall be signed by the presiding officers of the respective houses." The duty of signing bills and joint resolutions which have been passed by the legislature, and which remain unsigned at the time of adjournment, devolves on the speaker of the house of representatives and the lieutenant governor, acting in his capacity as president of the senate. The fact that the legislature designated the speaker and chief clerk of the house and the president and secretary of the senate "in their present *Page 534 official capacities" to complete the unfinished business of the legislature, and then specified the acts to be done, by these officials and so many of the attaches and employees of either house as might be necessary to finish said work, indicates, very clearly, that it was not the legislative intention that the speaker of the house and president of the senate should perform the manual labor of completing the legislative work, or that they were required, or expected, to do anything not germane to their respective offices.
Appellants insist the portion of Article IV, Section 19 of the Constitution, quoted in our original opinion, does not apply to the speaker of the house of representatives or the lieutenant governor. We here quote the entire section. The sentences appearing in italics are quoted in the original opinion.
"Sec. 19. The governor, secretary of state, state auditor, state treasurer, attorney general and superintendent of public instruction, shall, monthly as due, during their continuance in office, receive for their services compensation, which, for the term next ensuing after the adoption of this constitution, is fixed as follows: Governor, three thousand dollars per annum; secretary of state, one thousand eight hundred dollars per annum; state auditor, one thousand eight hundred dollars per annum; state treasurer, one thousand dollars per annum; attorney general, two thousand dollars per annum; and superintendent of public instruction, one thousand five hundred dollars per annum. The lieutenant-governor shall receive thesame per diem as may be provided by law for the speaker of thehouse of representatives, to be allowed only during thesessions of the legislature. The compensations enumerated shallbe in full for all services by said officers respectively,rendered in any official capacity or employment whatever duringtheir respective terms of office.
"No officer named in this section shall receive, for the performance of any official duty, any fee for his own use; but all fees fixed by law for the performance by either of them, of any official duty, shall be collected in advance, and deposited with the state treasurer quarterly to the credit of the state. The legislature may by law, diminish *Page 535 or increase the compensation of any or all of the officers named in this section, but no such diminution or increase, shall effect the salaries of the officers then in office during their term; Provided, however, The legislature may provide for the payment of actual and necessary expenses to the governor, lieutenant-governor, secretary of state, attorney general, and superintendent of public instruction, while traveling within the state in the performance of official duty."
This contention is based on counsels' construction of the word "enumerated," used in the section of the constitution above quoted. They attempt to make that word apply, exclusively, to compensations which are expressed in a specified number of dollars per annum, and to exclude from its application the per diem compensation of lieutenant governor, the amount of which is fixed by reference to the per diem compensation of the speaker of the house of representatives. That construction is entirely too narrow. In Webster's New International Dictionary, Second Edition, (1937) "enumerate" is defined thus: "To count over, or tell off one after another; to number; count; to name over." In Funk Wagnalls' New Standard Dictionary of the English Language, (1937) it is defined: "To name one by one; specify singly; tell; also, to count or ascertain the number of; as, to enumerate items or particulars;enumerating the population." In City and County of SanFrancisco v. Pennie, 93 Cal. 465, 469, 29 P. 66, 67, it is said:
"The word 'enumerate' is very frequently used with the meaning of 'designate,' or 'specifically mention.' Lexicographers give as definitions of the word, 'to mention in detail,' or 'reckon up singly,' 'to tell,' 'to recount,' 'to relate.' " (See, also, Black's Law Dictionary, Third Edition, page 669.)
"Enumerated," as used in Idaho Constitution, Article IV, Section 19, expresses the same meaning as would have been conveyed had "designated," or "specifically mentioned," been used in its stead. The compensation of lieutenant governor is enumerated in that section. That of speaker of the house of representatives is not. Reference to the speaker's compensation is made therein only *Page 536 for the purpose of fixing the amount of that of lieutenant governor. The amount of the speaker's compensation is limited by Article III, Section 23 of the Constitution, the applicable part of which appears in our original opinion.
Appellants further contend the constitutional limitation on the compensations enumerated in Article IV, Section 19, has had no force or effect since the term of office next ensuing after the adoption of the constitution. The language is: "Thecompensations enumerated," not the amounts thereof. The compensations of governor, secretary of state, state auditor, state treasurer, attorney general, superintendent of public instruction and lieutenant governor are enumerated in Article IV, Section 19, of the Constitution, and: "The compensations enumerated shall be in full for all services by said officers respectively, rendered in any official capacity or employment whatever during their respective terms of office." The compensation of speaker of the house of representatives, as well as that of lieutenant governor, as heretofore and in our original opinion pointed out, is limited by Article III, Section 23, of the Constitution.
On rehearing, appellants have brought to our attentionRussell v. Cone, 168 Ark. 989, 272 S.W. 678. In that case, a citizen and taxpayer of Arkansas brought suit to enjoin the auditor and treasurer of the state from issuing and paying warrants to certain senators and members of the house of representatives, pursuant to an act of the legislative assembly entitled "An act for the completion of the records of the work of the Forty-Fifth General Assembly," which provided that seventeen members of the senate and seventeen members of the house of representatives should remain on duty as members of the assembly, after adjournment, during a period of time fixed in the act, for the purpose of completing the work of the assembly; that for such services sixteen of the senators and sixteen of the representatives should receive $6.00 each per day and the president of the senate and speaker of the house of representatives, who were members of the committee, should receive $8.00 each per day; also that all said senators and representatives should receive, in *Page 537 addition to their per diem, $1.00 per day for stamps during the time of their service on the committee.
In the course of the majority opinion, it is stated:
"Without reviewing the testimony heard by the court below, it may be summarized by saying that it was to the effect that only a few of the senators or representatives could or did work at any one time, and that a number of them had done no work at any time, yet all of them had received vouchers entitling them to warrants from the Auditor of State, which would be paid by the Treasurer of the State out of the appropriation made by the General Assembly for that purpose.
"In this connection it may also be said that the act under review provided that, in addition to the senators and representatives who were named in the act, the Secretary of the Senate, with two assistant secretaries, the journal clerk, with two assistants, the bill clerk, the enrolling clerk, and one assistant, and nineteen extra clerical helpers who had been named by the president of the Senate, should likewise be employed, and that a like number of employees on the part of the House were also provided for. A grand total of forty-six persons on the part of the Senate and a like number on the part of the House were thus provided for by the act.
"The testimony shows that only fifteen days were required to enroll the bills for presentation to the Governor, and that a comparatively small number of persons could have performed this service within that time. No injunction was prayed in regard to paying these clerks, and the court made no order in regard to them."
From a decree of dismissal, plaintiff appealed and the supreme court affirmed the decree, two of its five members dissenting.
The majority opinion quotes the following provision of the Arkansas Constitution:
"Each member of the General Assembly shall receive six dollars per day for his services during the first sixty days of any regular session of the General Assembly, and, if any regular session shall be extended, such members shall serve without further per diem. Each member of the General Assembly shall also receive ten cents per mile *Page 538 for each mile traveled in going to and returning from the seat of government, over the most direct and practicable route. When convened in extraordinary session by the Governor, they shall each receive three dollars per day for their services during the first fifteen days, and, if such extraordinary session shall extend beyond fifteen days, they shall receive no further per diem. They shall be entitled to the same mileage for any extraordinary session as herein provided for regular sessions. The terms of all members of the General Assembly shall begin on the day of their election, and they shall receive no compensation, perquisite or allowance whatever, except as herein provided."
We have great respect for the ability of the Supreme Court of Arkansas and have studied its decision of Russell v. Cone, with care. It is not our intention to criticize that decision, but we are unable to reconcile it with the last sentence of the constitutional provision, above quoted, to-wit:
"The terms of all members of the General Assembly shall begin on the day of their election, and they shall receive no compensation, perquisite or allowance whatever, except as herein provided."
It does not seem to us to point the way to a proper performance of our duty in the cases before us, and we must, very respectfully, decline to follow it.
The portions of Article III, Section 23, and Article IV, Section 19, of our Constitution, quoted in our original decision, and on which it is based, were written for the protection of the state treasury, and the framers of that document could not have selected better language with which to express that intention. The decision heretofore announced is adhered to. *Page 539