Russ v. Commonwealth

Mb. Justice Mestbezat and Mb. Justice Potteb

dissenting :

That there may be no doubt as to the claim for which this action was instituted and the items of which the majority of this court says are chargeable against the commonwealth of Pennsylvania, we state the claim in the language of the plaintiff himself, as found in his statement, as follows :

“ Legislature of Pennsylvania,

“ Excursion to New York City

“ General Grant Monument Dedication.

“ To James Russ, Dr.

“ 1887

“April 27, To table supplies..........$1,678.36

wines and liquors....... 3,026.60

supper at Dooner’s for Com. 61.90

J. H. Riebel, cigars...... 450.00

hire of china and breakage . 187.53

employees’ services ...... 240.00

*560Amount brought forward............$5,644.39

car fare.............. 202.50

purchase of stoves....... 70.00

freight charges......... 8.75

James Russ, incidental expenses ............. 175.00

$6,100.64

“Cr. By liquors returned........ 157.00

sale of stoves.......... 32.00 189.00

$5,911.64

The edibles and drink were furnished as a lunch and dinner, both meals being served between the hours of 11:30 A. M. and 6 p. M., on the boat which carried the legislative excursionists on the Hudson river from Jersey City to a point opposite the Grant monument, a distance of ten miles or less, and back. There were 425 persons, of which number 253 were members of the legislature. Relative to the meals and liquors furnished, Senator Krause, chairman of the joint committee to make arrangements for the excursion, testifies as follows: “ Q. Tell us what he (Russ) furnished. A. He furnished the lunch; as soon as we arrived at Jersey City and got on the boat there was a very nice lunch prepared for us. Q. Go on and state what else Mr. Russ did. A. After the ceremonies were over he furnished an elegant dinner for us, with wines and liquors and everything included, with the cigars; had cigars going on the train, cigars on the boat, and everything in first-class order. Q. Do you remember the kind of wine that was furnished ? A. White Seal; wasn’t any too good for the members of the legislature, we thought. Q. Do you remember what else was furnished, can you tell what was furnished in the way of food for the dinner ? A. Oh, it was so fine that I forget exactly all the elegancies that we had; we had everything first class. Q. Can you tell us what other liquors were furnished ? A. Liquors of all description. Q. Describe them; tell what they were. A. We had plenty of whisky, and we had plenty of beer and plenty of appollinaris; I don’t know how many drank apollinaris, but apollinaris was furnished. *561Q. Did you specify what liquors? A. Yes, sir; as far as the wines were concerned, because that was a motion unanimously carried in the committee. Q. You did not specify anything with respect to the whisky, beer or cigars ? A. Oh, I told him we wanted all those things. Q. I understand, generally speaking, senator, that you ordered nothing special from Mr. Russ except the wine ? A. That is all. Q. You left it to his discretion? A. That is right.”

John Riebel, a cigar manufacturer of Philadelphia, was a member of the military committee of the house as well as of the joint committee to arrange for the excursion. He was called as a witness by the plaintiff and testified that the joint committee, about three fourths of which were present, held a meeting in Philadelphia the night before the excursion, and that Mr. Dooner served them with a lunch for which a charge is made in the plaintiff’s bill. He further testified: “ Q. Can you tell what he (Russ) gave to you as lunch ? A. Only a first-class lunch; I can’t begin to enumerate what articles he had there, or what food he had there; a first-class lunch in every respect. Q. State whether he provided anything else. A. On our return back he had supplied one of the finest dinners a man wanted to sit down to, served on the boat, had all the elegancies of the season, anything you can mention in the eatable line almost.”

As to the contract made with him by Senator Krause and what was furnished in pursuance of it, the plaintiff testifies : “ Q. What did he say to you when he came there ? A. He told me he wanted a first-class layout, everything up to date, and I did so. Q. What did he tell you he wanted as to the number of meals if anything? A. Well, a lunch the moment we got on the boat and a dinner returning towards New York—Jersey City. Q. What did he (Krause) say? A. He said I should go, ahead and make all arrangements, and especially the one thing that they (the committee) put out especially was ‘ White Seal champagne.’ Q. (Mr. Fox) now can you state what you did furnish? A. Oh, Lord, I furnished everything, they had a nice lunch and very fine dinner. Q. Now about how much a head did you calculate to charge ? A. I did not calculate at all, there was no price whatever, if it cost $5,000,000 there was no price at all that was to it. Q. In *562other words, there was no limit put on the cost? A. No, sir; not a cent. Q. You don’t know the kind of liquors returned? A. No. Q. Do you know the price charged for the returned liquors ? A. Just that much there; it was very lucky any was returned at all.”

The only basis for this claim of $5,911.16 against the state for table supplies, wines and liquors, cigars and “ incidental expenses ” (about one half of the claim, it will be observed, being for wines and liquors) is a joint resolution passed by the senate and house of representatives over the veto of the governor in which it is resolved “ that the senate and house of representatives attend said dedication (of the General Grant monument in New York) in a body, and that all matters pertaining to such attendance be referred to the committee on military affairs of the senate and house.” The learned trial judge held that this resolution conferred no authority on the committee to make a contract with the plaintiff for the items charged in his bill, and hence he had no valid claim against the state. For the reasons set forth a-t length in the opinion refusing to take off the nonsuit, we entirely concur with the conclusion of the court below, and would affirm the judgment.

It does not aid the position of the majority of the court to cite authorities to sustain the proposition, conceded to be the settled rule in all the states of the federal union, that the power of the general assembly of a state to legislate is absolute, subject only to the restrictions and limitations imposed by the constitution of the state and that of the United States. That principle is not controverted, but it is most strenuously denied that the legislature, by the joint resolution in question, gave authority to the committee on military affairs to bind the state by a contract to pay the plaintiff the claim for which this action was brought. It is apparent that the language of the resolution conferred no direct authority on the committee to enter into a contract to bind the state for any expense incurred by the legislature in attending the dedicatory exercises. If any authority to contract for such purpose is given, it is by implication and that alone, and not being necessarily implied from the power conferred upon the committee by the joint resolution, the court should not sustain it on that ground. The character of the claim conclusively rebuts any implication that *563the legislature in passing the resolution intended to authorize the committee to make a contract for it. Such interpretation of the resolution opens the door to raids upon the state treasury by committees of the legislature by which the taxpayers of the state can be made to pay claims which, as in this instance, the general assembly of the commonwealth or no other self-respecting legislative body, would for one instant think of approving. Had the plaintiff’s claim, the character of which is shown by the items thereof and the testimony, been presented to the senate and house in open session at the time the joint resolution was passed, we are satisfied that those bodies would not have authorized the committee to contract for or pay it. It would have shocked the legislative conscience, as well as that of the people of the commonwealth. The testimony leaves no doubt as to the purpose in view when the contract was made. and what was expected to be, and what was, furnished in pursuance of it. About seventeen hundred dollars’ worth of food and three thousand dollars’ worth of wines and liquors were consumed on the steamer by the 425- guests of the state in six and one-half hours. This tells the brief but comprehensive story of the manner in which the money claimed here was applied (in the language of the preamble to the joint resolution) “ in commemoration of the life and deeds of a hero whose memory we revere.” Further comment upon the subject is unnecessary. To hold that authority was conferred upon the legislative committee by the concurrent resolution to contract for such a claim, is violative of all sound rulos of interpretation, and is not supported by reason or authority.

We would, morever, take a step further than the trial court and hold that the legislature was prohibited by the constitution from authorizing the committee to make the contract under which this claim is made against the state. Article 2 of section 8 of that instrument provides: “ The members of the general assembly shall receive such salary and mileage for regular and special sessions as shall bo fixed by law, and no other compensation whatever, whether for services upon committee or otherwise. No member of either house shall, during the term for which he may have been elected, receive any increase of salary, or mileage, under any law passed during such term,” At the time of the excursion to New York, the mem*564bers of the legislature were receiving as compensation a salary and mileage fixed by law and hence under this constitutional provision they could receive “no other compensation whatever.” Equally explicit and mandatory is the provision that no member shall “ receive any increase for salary or mileage under any law passed during the term ” for which he is elected. Mr. Buckalew, a recognized authority upon the interpretation of the constitution, says (Constitution 40) : “ Compensation to members is properly for time spent, for services performed and for personal .expenses incurred for the public; but the forms of the compensation to be made to them for outlay, time and labor are the two expressly fixed by the constitution, namely, salary and mileage, which are declared to exclude all others.” A member of the legislature is therefore confined to his salary and mileage as compensation for his services, in neither of which is the claim here presented included. The joint resolution shows that the members attended the dedication as a legislative body, and the claim for the edibles, liquors, cigars, etc., furnished by the plaintiff -is “ other compensation ” to the members of the legislature than salary and mileage and therefore is clearly within the constitutional inhibition. If the sum claimed by the plaintiff had been paid by the state to the members to defray their expenses in attending the dedication, it would clearly have been additional to the compensation allowed them by law. The practical effect of a payment by the state direct to the plaintiff is the same as a payment of the amount to the members and by them to the plaintiff. In either case, they receive an additional compensation from the state for their services as members of the legislative body to which they belong.