EARHART et al.
FROHMILLER, State Auditor, et al
Original proceeding in mandamus by R.R. Earhart, as member of the 18th State Legislature, State of Arizona, from Santa Cruz County, State of Arizona, and E. P. Schaffer, attache of the 18th State Legislature, against Ana Frohmiller, State Auditor, and Mitt Simms, State Treasurer, to compel the State Auditor to allow and the State Treasurer to pay claims for subsistence and lodging expenses. On motion to quash alternative writ of mandamus and dismiss the proceeding.
Writ denied; alternative writ of mandamus quashed.
John L. Sullivan, Atty. Gen., John W. Rood and Perry M. Ling, Asst. Atty. Gen., for petitioners.
Charles L. Strouss, of Phoenix, for respondents.
Stanford, C. J., and LaPrade and Udall, JJ., concur.
[65 Ariz. 223] Petitioners seek a writ of mandamus compelling the State Auditor to allow and
the State Treasurer to pay claims for subsistence and lodging expenses in accordance with the provisions of Chap. 16 (H.B. 103). This bill was enacted by the Eighteenth Legislature on February 28, 1947, over the vote of the Governor, with an emergency clause attached. That part of the bill necessary to this opinion reads as follows: "Section 1. Reimbursement of members of legislature. Any member or employee and officer of the legislature, while absent from his usual place of residence in the service of the state during a session of the legislature, shall be reimbursed for his actual and necessary expenditures for subsistence and lodging, not to exceed the sum of ten dollars per day. All claims for reimbursement as provided in this Act shall be filed as other claims against the state, and shall be accompanied by receipts or vouchers evidencing such expenditures * * *." (Emphasis supplied.)
Due to the nature of the questions here raised this Court assumed original jurisdiction and issued an Alternative Writ of Mandamus which the respondents moved to quash, asking that the action be dismissed. Because of its public importance, the Court advanced this matter on its calendar.
Respondents' objections are directed solely to the constitutionality of allowing subsistence and lodging expenses to members of the Legislature and their employees who are absent from their usual place of residence while serving the State during legislative sessions.
Undoubtedly the Act provides for "personal expenses" as distinguished from "legislative expenses", and this under the theory, no doubt, that the State of Arizona is unduly enriched by not reimbursing the Legislators for their personal expenses during their period of service when other public officers are so reimbursed.
We must necessarily determine in this case whether the Legislature can exercise that same degree of freedom in the matter of providing necessary expenses inuring to the benefit of its own members as it exercises in providing for payment of the expenses incurred by executive, judicial, and administrative officials and employees of the state.
There are many decisions of other states holding invalid acts which provide, in one [65 Ariz. 224] form or another, for personal expenses of members of the legislature. Peck v. State,63 Idaho 375, 120 P.2d 820; State ex rel. Boyd v. Tracy,128 Ohio St. 242, 190 N.E. 463; Peay v. Nolan,157 Tenn. 222, 7 S.W.2d 815, 60 A.L.R. 408; Gallarno v. Long,214 Iowa 805, 243 N.W. 719; Dixon v. Shaw, 122 Okl. 211, 253 P. 500, 50 A.L.R. 1232; Fergus v. Russel,270 Ill. 626, 110 N.E. 887; Godfrey v. Hunter,176 S.C. 442, 180 S.E. 468; Advisory Opinion to Governor, 156 Fla. 48, 22 So.2d 398; Terrel v. King,118 Tex. 237, 14 S.W.2d 786; Ashton v. Ferguson,164 Ark. 254, 261 S.W. 624; Jones v. Hess,132 Or. 175, 285 P. 205; State ex rel. v. Turner,117 Kan. 755, 233 P. 510. Some of these cases can be distinguished, being based upon different constitutional language; others, it must be conceded, are directly in conflict ...