ON PETITION FOR REHEARING. Counsel for appellee, in his brief on petition for a rehearing, says: "The judgment of reversal exists solely because Martin, J., erroneously resolved his doubt in favor of the validity of the act" . . . "The rule applied by Martin, J., is proper when there is an *Page 466 attempt to invoke the Constitution as against a public act enacted in the public interest, but it cannot properly apply where the public invokes the Constitution against such an act as the act of 1927 which serves only the private interests of public servants at the expense of the public treasury. Every rule has its exceptions and the instant case furnishes the exception."
The authorities cited to support this statement hold that "considerations of expediency and of sound public policy may be of determining influence in case of doubt as to the real meaning of a constitutional provision." 12 C.J. 703.
Appellee's argument cannot prevail. We know of no public policy that has been violated by the act of 1927 here involved. Appellee, regardless of the fact that the reasonableness of 7. the salary of $10 per day fixed by the legislature was not in issue and was not considered by the court, and regardless of the statement in his brief that "the reasonableness of the amount of compensation which the legislature may fix for its members can never be a question for this court," devotes a large portion of his brief to numerous and repeated declarations of the following tenor: "the great public interest in a protected treasury is now being sacrificed in favor of the strictly personal interests of public officials . . . the excess in the provision of $10 per day . . . is hostile to the public interest and . . . for their personal enrichment and . . . the direct pecuniary interests of the members."
The General Assembly is a co-ordinate branch of the state government, whose members ought not to be called upon to make too great a financial sacrifice in order that they may serve their state. Considering the present high cost of living, we do not believe it can be justly said that a salary of $10 per day for those officers who make our laws is "hostile to the public interest" or *Page 467 sacrifices "the great public interest in a protected treasury." The Constitution provides that they shall be "compensated for their services" and it appears to us that "sound public policy" requires that this compensation shall be a reasonable one. A compensation which does not greatly exceed the personal expenses of a legislator during his attendance at the session, and which is probably insufficient to meet the living expense of his family at home during that time, is certainly not against the "public interest," or for "personal enrichment."
Appellee, in his petition for rehearing, urges that mandate is not the proper form of action here because "mandate only lies where there is a clear legal right and a clear legal duty." 8. Section 1 of the act of 1927 clearly points out to the auditor this duty, and merely to perceive that someone might attack the law on constitutional grounds, is not sufficient cause for his refusing to perform this duty. Moreover, the question as to whether mandate was the proper form of action was not presented by the briefs on the original hearing, and, at the time of the oral argument, was expressly waived by counsel for both appellant and appellee.