An extraordinary session of the General Assembly was convened on March 24, 1924, by proclamation of the Chief Executive, and the session lasted twelve days. On the fourth day of the session the House of Representatives adopted a resolution directing- the clerk to “issue to each member of this House of Representatives a voucher with which to pay expenses of stamps, telephone, telegraph and other necessary expenses, the sum of $100, and the Auditor of State is hereby directed and empowered to issue appropriate warrants covering said vouchers so issued, and the Treasurer of this State is hereby authorized to honor said warrants.” On the last day of the session the Senate adopted a resolution directing the secretary to “issue warrants to each Senator for one hundred dollars, covering stamps, telegrams and other incidental expenses incurred while attending- said Legislature.”
Appellants are citizens and taxpayers of the State, and they instituted this action in the chancery court of Pulaski County against the Auditor and Treasurer to. restrain them from issuing and paying warrants under the foregoing resolution. It is contended that each of the resolutions referred to is unconstitutional and void.
An amendment to the Constitution, adopted in the year 1913 and now in force, reads as follows:
“Article 5, § 17, amended. 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 for each mile traveled in going to and returning- from the seat of 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.”
The per diem and mileage of the Senators and Representatives were paid out of the funds regularly appropriated to cover the expenses of the session, and it is plain that the allowances attempted to be made in these resolutions were to be in addition to the mileage and per <Mem. The contention of counsel for appellants is that this is no more nor less than an attempt, in violation of the Constitution, to make an additional allowance to the Senators and Representatives; and, on the other hand, it is contended by counsel for appellees that this is not an allowance or perquisite or additional compensation within the meaning of the Constitution, and is merely a provision by each of the houses of the General Assembly for the payment of the expenses of conducting the session.
There is a statute (Crawford & Moses’ Digest, § 4959) which provides, in substance, that each of the two houses of the General Assembly shall control its own contingent expenses, and that the same shall be certified by the presiding officer. This statute merely declares that which is an essential power of each of the houses of the General Assembly in order to perform its functions, and it should be said, in advance of this discussion, that, if no more were involved than the exercise of this power, the determination of the case would be easy. Undoubtedly each of the houses possesses the power to determine its necessary expenses, but, in doing so, it must proceed within constitutional restrictions, and is not permitted to disregard express constitutional provisions. The Constitution provides, in explicit and comprehensive terms, what payments shall be made to members. The provision in this respect does not express merely a grant of power, but it places a limitation upon the power of the General Assembly. It provides, in other words, what may be paid to the members, and expressly forbids the payment of anything more. The restriction relates not merely to mileage and per diem, but it provides that the members “shall receive no compensation, perquisite or allowance whatever, except as herein provided.” These words mean more than mileage and per diem, and the use of them excludes the payment of anything else to members. Each of the resolutions referred to directly offends against this express limitation in the Constitution. The provision for the payment of one hundred dollars to each member is nothing more nor less than an allowance. It is an allowance for the use of each member for the purposes mentioned, but it is to be used at the will of the members to whom it is paid, and is, after all, a mere allowance, and not the payment of expenses incurred by the house itself.
Each house may provide conveniences, such as stationery, pencils, ink, telephone and telegraph and other things for the use of the members, and pay for the same out of contingent expenses, but it is quite another thing to attempt to make an allowance of funds to a member to be used at will. One is the payment of a legitimate expense, and the other is an allowance placed at the disposal of the members to be used at his own discretion and will. One is a payment of necessary expenses of the house itself, and the other is an allowance to the member in spite of the provision of the Constitution to the contrary. The question must be disposed of in an interpretation of the peculiar language of the Constitution, hence authorities directly bearing upon the question are not available. It may be said, however, that the decision of the Supreme Court of Illinois in the case of Fergus v. Russell, 270 Ill. 626, is very nearly in point. In that State there was a provision in the Constitution prohibiting the payment to members of any compensation in addition to the amount specified, and a provision that there should be “no other allowance or emolument, directly or indirectly, for any purpose whatever, except the sum of fifty dollars per session to each member, which shall be in full for postage, stationery, newspapers, and all other incidental expenses and perquisites.” There was a joint resolution allowing to each member of the House and Senate “Ms actual railroad mileage for twenty-one round-trips from the capital of the State to and from their respective homes, at the rate of two cents per mile.” The Supreme Court of Illinois decided that the resolution providing for extra mileage offended against the provision of the Constitution, and was void. The court held that the payment of extra mileage was an attempt to make an “allowance” within the meaning of the Constitution.
Counsel for appellees rely on the decision of the Tennessee court in the case of State v. Thomason, 142 Tenn. 527. In Tennessee there is a provision of the Constitution fixing the per diem and mileage of members of the Legislature “as a compensation for their services,” and the Legislature passed a- bill authorizing the payment to each member of the sum of $150 “for stenographic work and other necessary expenses.” It was contended that the allowance was in conflict with the Constitution and void, but, in disposing of the question, the Supreme' Court held that the constitutional provision in question was a limitation relating solely to the matter of compensation, and not to expenses of the members, and that the Legislature was free to make allowances for expenses of the members themselves, as well as for the expenses of the House as a whole. The Constitution of that State contained no inhibition, as in this State, with reference to additional allowances to members other than those expressly provided for. We do not think that the Tennessee case has any bearing on the question now presented.
It is further argued by counsel for appelleés that the question presented is a political one, and not judicial, but the answer to this contention is that, in the exercise of any power, legislative or otherwise, due regard must be had for constitutional restrictions, and it becomes a judicial question whether or not the limits set by the Constitution have been transcended.
Our conclusion is that these allowances are in plain violation of the Constitution, and the officers of the State should be restrained from making disbursements thereunder.
The decree of the chancery court is. therefore reversed, and a decree will be entered here in accordance with the prayer of the complaint.