Oregon Advisory Opinions March 14, 1957: OAG 57-19 (March 14, 1957)

Oregon Attorney General Opinions

1957.

OAG 57-19.

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You have requested our opinion as to the constitutionality of Senate Bill No. 203, if passed by the Legislative Assembly.

Senate Bill No. 203, in substance, raises the salary of the members of the Legislative Assembly from $600 per annum to $1200 per annum, and provides for the manner in which such salaries are to be paid. The bill amends ORS 171.070.

ORS 171.070 was originally enacted as chapter 2, Oregon Laws 1951, which in turn amended chapter 2, Oregon Laws 1937. The former enactment was passed by the legislature for the purpose of carrying out the provisions of Article IV, § 29, of the Constitution, as adopted by the people at the general election held November 7, 1950. The 1950 amendment of Article IV, § 29, is the last amendment to the Constitution establishing the salaries of members of the legislature, although at the general elections held November 2, 1954, the people of Oregon refused to grant to the Legislative Assembly the power to fix their own salaries, and again on November 6, 1956, the people refused to adopt House Joint Resolution No. 8, proposing to amend Article IV, § 29, Constitution, increasing

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the annual salary of members of the Legislative Assembly from $600 to $1200.

Article IV, § 29, Oregon Constitution, provides:

"The members of the legislative assembly shall receive for their services a salary of six hundred dollars ($600) per annum, payable as provided by law. For each session of the legislature, they shall also receive the sum of 10 cents for every mile they shall travel in going to and returning from their place of meeting, on the most usual route, and no other personal expenses. The presiding officers of the assembly shall, in virtue of their office, receive an additional compensation equal to one-third of their annual allowance as members."

Prior to the 1950 amendment Article IV, § 29, read as follows:

"The members of the legislative assembly shall receive for their services a sum not exceeding eight dollars ($8) a day, from the commencement of the session; but such pay shall not be more than 50 days for any regular session. When convened in extra session by the governor, they shall receive eight dollars ($8) per day; but no extra session shall continue for a longer period than 20 days. They shall also receive the sum of 10 cents for every mile they shall travel in going to and returning from their place of meeting, on the most usual route. The presiding officers of the assembly shall, in virtue of their office, receive an additional compensation equal to one-half of their per diem allowance as members."

Section 29, prior to the 1950 amendment, was held to be a limitation upon the legislative power and the salary of members of the legislature could not be increased by making a legislative allowance for personal expenses. Jones v. Hoss, 132 Or. 175.

In the Jones case, the court said:

"In construing a constitutional provision we seek to ascertain and give effect to the intent of the framers and of the people who adopted it. Words which have no well established technical or legal signification are to be given their plain, natural and ordinary meaning. A constitution is dependent upon ratification by the people. Its language should, therefore, be considered in the sense most obvious to the common understanding of the people at the time of its adoption. * * *" Jones v. Hoss, 132 Or. 175, 178.

The language of Article IV, § 29, as it now stands, is clear and unambiguous. The intention of the people who adopted it is well expressed. The words used have a plain, natural and ordinary meaning. "The members of the legislative assembly shall receive for their services a salary of six hundred dollars ($600) per annum, payable as provided by law."

There can be no doubt that the people in adopting this language intended it to be a limitation upon the power of the legislature. The annual salary fixed by the Constitution is for services rendered. The people of the state were apprised of this fact by a statement in the Voters' Pamphlet for the general election of November 7, 1950, in the arguments for the adoption of the present amendment, where it was said:

"The Constitution of Oregon has justly reserved unto the people the right to set the compensation of the members of the legislative assembly." 1950 Voters' Pamphlet 7.

This same idea was expressed in the Voters' Pamphlet at the last general election wherein the people refused to adopt an amendment to Article IV, § 29, Constitution, increasing legislators' salaries from $600 to $1200 per annum, the very same increase purported to be authorized by Senate Bill No. 203.

"This amendment, contrary to one voted down several years ago, keeps the voter in charge of legislative salaries and would not give the legislature the authority to set its own without a vote of the people." 1956 Voters' Pamphlet 19.

At the general election held November 2, 1954, the people of Oregon voted against the very power that the Legislative Assembly now seeks to assert in Senate Bill No. 203. The proposition submitted to the people at this election was: "To amend Oregon Constitution by giving state legislature power to fix the salaries of its members by law." 1954 Voters' Pamphlet 5.

It it well understood that these statements and other extrinsic matters are not controlling upon the court but are forceful to show the intention of the people in adopting amended Article IV, § 29, Constitution.

I am not unmindful of the language of Article XIII, § 1, setting the annual salaries of the Governor, Secretary of State, State Treasurer and Judges of the Supreme Court, repealed at the 1956 general election, and the ruling of the Supreme Court in Jory v. Martin, 153 Or. 278. Although the language of Article IV, § 29, amended, is somewhat similar to the language of Article XIII, § 1, it is distinguishable in that Article IV, § 29, limits by express language the legislative power to the manner in which the annual salary is to be paid.

The Supreme Court in Jory v. Martin found ambiguity in the language used in Article XIII, § 1, not in the words used but in the manner in which the provision had been applied. In other words, the court relied upon the rule of "practical construction" for the purpose of giving effect to the intention of the people adopting the particular provision of the Constitution. This is not so in the case now under consideration. In fact the "practical construction" has been against any contention that the 1950 amendment of Article IV, § 29, gave to the Legislative Assembly the power to

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fix its own salaries. This is evidenced by the fact that, as shown above, the three Voters' Pamphlets that were concerned with amendments of Article IV, § 29, contained expressions to the contrary and the further fact that the Forty-seventh and Forty-eighth Legislative Assemblies deemed it necessary to refer these amendments to the people at the 1954 and 1956 general elections.

Although Jory v. Martin is authority for the upholding of the constitutionality of Senate Bill No. 203, particularly where consideration is given to the language used in Article IV, § 29, and Article XIII, § 1, it does not appear to be controlling when consideration is given to the prime basis behind the ruling of the Supreme Court in upholding the legislature's authority to fix the salary of the Governor. In the Martin case, as I understand it, the ambiguity for the purpose of applying rules of construction arose out of not the plain, clear and understandable language of Article XIII, § 1, which did not lend itself to interpretation or construction, but to extrinsic matters arising out of a "practical construction" continued for a period of 76 years.

Lacking "practical construction" in favor of legislative power to fix the salaries of its members and confronted with a "practical construction" to the contrary, I believe there is a serious question as to the constitutionality of Senate Bill No. 203. See Starr v. Laundry Union, 155 Or. 634. In final analysis it is not for this office to say whether a law is constitutional or unconstitutional unless the unconstitutionality of an Act of the legislature is so clear that reasonable minds would not disagree on the question. Such clarity does not exist here. As you well know our opinions are advisory only and it is the prerogative of the courts to give finality to such questions.