(dissenting) — Amendment 20, which in 1948 added Art. XXVIII to the constitution, authorizes the legislature to fix the compensation of legislators. However, at the time of the 1941 legislative session, there was a provision in our constitution that legislators would receive five dollars a day as compensation and ten cents per mile for travel. In 1941, it was common knowledge that five dollars per day would hardly meet the going rate for lodging in Olympia, and that this left little or nothing for subsistence. The legislature appropriated forty thousand dollars and provided that members would be paid therefrom as maintenance at a rate not to exceed five dollars per day for actual and necessary expenses expended for subsistence and lodging while absent from their usual places of residence in service to the state.
In a test case which developed (State ex rel. Todd v. Yelle (1941), 7 Wn. (2d) 443, 110 P. (2d) 162), the court specifically held
“. . . the reimbursements provided for in chapter 4, Laws of 1941, do not increase the compensation of the members of the legislature, within the meaning of § 25, Art. II of the constitution.”
This clearly recognized a distinction between expenses and compensation as the latter word is used in the constitution.
It is true that in 1941, in making provision for maintenance or expenses of its members, the legislature used an accounting method which contemplated the keeping of pre*602cise and accurate expense records and reimbursement on an item-by-item, actually or specifically incurred expense basis. The opinion of the court in the Todd case, supra, referred to this method of accounting, or reimbursement for actually incurred expenses. The majority opinion in the instant case places, I think, too much significance upon this facet of the Todd case. Largely by emphasizing this facet of Todd through repetition of the phrase, “true reimbursable expense,” the majority opinion concludes that only an accounting method which involves item-by-item listing of actually incurred expenses can escape constitutional repug-nancy.
I simply cannot agree with this reasoning or with the result reached by the majority. While the phrase, “true reimbursable expense,” aptly describes a particular facet of the Todd case, it does not appear therein. It is not to be found in the constitution, and, significantly, it is not found in the legislation involved in the instant case. It seems to me that the phrase amounts to nothing more or less than judicial hypothesis and construction, and that it should be considered and evaluated on this basis, as any potentially feasible but not irrevocably binding legal concept. In any event, the phrase, “true reimbursable expense,” is itself not unequivocably decisive as to the question in the case at bar.
In connection with the foregoing, I believe it should be noted that it has become an accepted accounting practice, both in government and in other circles, to provide for lump-sum, maximum expense allowances. Such lump-sum expense allowances are based upon accounting experience or averages. The method is commonly referred to as in lieu reimbursement. It is the exact opposite of an item-by-item calculation of actually-incurred expenses, but this alone does not render it undesirable from an accounting standpoint, nor make it unlawful.
I think that in the Todd case the court referred to the method of item-by-item accounting of specifically-incurred expenses simply because that method was contemplated or used in the action taken by the legislature itself in the enactment before the court in the Todd case. I do not believe *603that the principle of law decided in the Todd case is or should be restricted to the matter of constitutional approval only for the particular type of accounting method there involved.
In the instant case, in my opinion, the legislature, in providing two hundred dollars per month for the particular elected state officials, adopted the in lieu reimbursement method. The action of the legislature in the instant case constitutes a legislative finding of fact that the lump sum of two hundred dollars per month is a fair and satisfactory average as to expenses reimbursable to the particular elected state officials. The instant case is here for review on an agreed statement of facts. There is nothing in the agreed statement of facts to indicate that the legislative finding of fact involved in making the lump-sum allowance of two hundred dollars is in fact unreasonable or erroneous. The burden of upsetting a legislative finding of fact, I think, is upon the relator. This burden has not been met in the instant case.
As recently as the case of State ex rel. O’Connell v. Meyers (1957), ante p. 454, 319 P. (2d) 828, this court stated:
“The authority and duty to ascertain facts which control legislative action are upon those to whom was given the power to legislate. Courts will not inquire into a legislative factual determination, beyond consideration of that which appears upon the face of the act, aided by judicial notice.”
In Scroggie v. Scarborough (1931), 162 S. C. 218, 229, 160 S. E. 596, a case similar to the one at bar, the supreme court of South Carolina said:
“However, in the view we take of the instant case, it may be decided upon the assumption that only official expenses are properly allowable under the provisions of our Constitution, as we find nothing in the record which would justify us in deciding as a matter of fact that the expenses for which members of the General Assembly are to be reimbursed by the appropriation in question are other than official expenses. For the Legislature, a co-ordinate branch of the government, this Court has the highest respect, and there is a presumption that the appropriation was made for a proper purpose within the provisions of the Constitution; the bur*604den, therefore, was upon the petitioner to show, by any proper means, that the expenses to be covered by the appropriation were personal and not allowable under such provisions. In this he has failed. There is nothing before the Court to show the nature of these expenses, except the statement in the argument of petitioner’s counsel to the effect that the appropriation was to defray personal expenses, and it is well settled that such statements cannot be considered; the facts must be shown by the record itself. See State v. Wilder, 13 S. C., 344; Turpin v. Sudduth, 53 S. C., 295, 31 S. E., 245, 306; Whetstone v. Livingston, 54 S. C., 539, 32 S. E., 561; Burkhim v. Pinkhussohn, 58 S. C., 469, 36 S. E., 908. Furthermore, when the length of the legislative term is taken into consideration, the amount of the appropriation is not so great as to indicate on its face that it was made for other than official expenses.”
In the Todd case, supra, this court recognized the cogency of the reasoning of the South Dakota court in a similar case, McCoy v. Handlin (1915), 35 S. D. 487, 153 N. W. 361. The majority attempts to distinguish the McCoy case by stating that the South Dakota statute detailed certain expenses and mentioned the difference in cost of living. What has happened to the presumption of constitutionality? Why must the legislature detail that which is implicit in the use of the term “expense?” The majority also mentions, as a distinguishing factor between the South Dakota statute and the one before us, that the latter one is limited to expenses incurred at the seat of government. I do not so read the statute. The language in § 2, chapter 300, Laws of 1957, p. 1202, is “. . . while serving as duly elected and qualified officials at the seat of government ...” (Italics mine.) I believe this language is broad enough to cover among other expenses those incurred by a state official in moving to and establishing residence at the seat of state government, and in re-establishing residence elsewhere upon termination of service. It is well known that the incumbents of several elective state offices, after the 1956 general election, transferred their residences elsewhere than Olympia, for business or other perfectly proper personal reasons. But there are no facts before the court indicative of moving or *605other expenses or an absence thereof, and it is not proper to speculate upon these aspects of the case.
I think the majority opinion goes to some length to distinguish the Todd case, supra. I readily concede that there is some difference between legislators and elected state officials in terms of governmental function and, possibly, in terms of general modus operandi. But to me, such differences are a matter of degree and are somewhat minor in terms of distinguishing the Todd case. The majority (referring to the officials involved in the instant case) say that
“Such a state official is aware of these physical requirements of living in Olympia, unless he be a ‘commuter,’ when he aspires to the position, and must be held to intend to fulfill these requirements.”
I fail to see how this distinguishes the particular elected state officials from the members of the legislature who were concerned in the Todd case, supra. Any one aspiring to the legislature also is aware of the physical requirements of being in Olympia for the legislative session and must be held to intend to fulfill those requirements. This reasoning did not carry the court in the Todd case. It is dubious that such reasoning would grow stronger and more persuasive simply through the passage of sixteen years.
For the reasons indicated, I do not agree with the limited and restrictive interpretation which the majority in the instant case places upon the Todd case, supra. Until such time as a majority of the court overrule the Todd case, it is controlling. The writ of mandamus in the instant case should not be issued.