In the Matter of the Executive Communication of January 29th, 1869, 12 Fla. 689

Executive Oeeice, ) Tallahassee, Fla., To the Hon. the Supreme Court: The Constitution,

Article XVI.,

section 4, says: “ The pay •of the members of the Senate and House of Representatives shall be $500 per annum,” &c.

Section 6 says: “ The salary of each officer shall be payable quarterly upon his own requisition.” Is the salary of members of the Legislature payable monthly, quarterly, or yearly ? Is it payable in advance or at the close of the period ? An early opinion is required for the guidance of the Executive Department. Very respectfully, your obedient servant, Harrison Reed, Governor.

To His Excellency Harrison Reed, Governor: Your communication of the 29th inst. is received, wherein you require the opinion of the court upon the following questions : Is the salary of members of the Legislature payable monthly, quarterly, or yearly ? Is it payable in advance, or at the close of the period ? The portions of the Constitution relating to the subject are not entirely free from doubt as to their true meaning, and the members of this court are not of the same opinion in every respect in regard to their

interpretation. A majority of the justices, however, have come to the following conclusions :

Section 2 of

Article IV. reads as follows: “ The sessions of the Legislature shall be annual; the first session on the second Monday of June, A. D. 1868, and thereafter on the first Tuesday after the first Monday of January, commencing in the year A. D. 1869. The Governor may in the interim convene the same in extra session by his proclamation.” *

Section 3 is as follows: “The members of the Assembly shall be chosen biennially, those of the first Legislature on the first Monday, Tuesday, and Wednesday of May, A. D. 1868, and thereafter on the first Tuesday after the first Monday of November, commencing with the year, A. D. 18VO. From these sections we infer that the legislative year is to be held to commence with the day of the annual meeting 'of the Legislature, and to end on the day fixed for the next annual meeting of that body.

Section 4 of

Article XVI. provides that the “ salmies ” of the Governor, Lieutenant-Governor, Justices of the'Supreme Court, Circuit Judges, and Cabinet officers shall be certain fixed sums ; that the “pay” of the members of the Legislature shall be five hundred dollars per annum, and ten cents per mile; and all other officers of the State shall be paid by fees ; and

section 6 says, “ Thesalary of each officer shall be payable quarterly upon his own requisition.” Are members of the Legislature officers within the meaning of the Constitution ? The Constitution of the United States,

Article I.,

section 6, says, “No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office, * * * and no person holding any office under the United States shall be a member of either House during his continuance in office.” The Houses of Congress have, on several occasions, decided, and we believe invariably, that members of Congress were not officers in the true sense of the word. It has also been so held by the Legislatures and courts of various States and of this State, in reference to members of Legislatures and State Conventions.

Our Constitution speaks of Senators vacating their “ seats” not their “ offices.” It says, the “ salary ” of certain officers shall be a certain sum, and that the “salary” of each “officer” shall be payable quarterly; and in regard to the compensation of members of the Legislature, in the same

section which provides the amount of salaries, it says, not “salaries” but the “pay ” of members of the Senate, &c., shall be five hundred dollars per annum and mileage. , The provision that the salary of each officer shall be payable quarterly cannot apply to members of the Legislature, because the “pay” including mileage, renders the sum they may be entitled to receive indefinite. It certainly cannot be held that they are to draw their mileage quarterly.

The words “all other officers,” in the fourth section, following the enumeration of several officers and their salaries, and members of the Legislature and their “pay” refers immediately to the officers named, and not to members of the Houses. The words or terms “ salary ” and “ pay,” refer the one to the “ officers ” mentioned, and the other to the “ members.” Note. — The head note in this case was prepared in accordance with the statute by the Judge delivering the opinion. — Rep’r.

The duties of the several “ officers ” of the State are constant; each may be called upon at any moment to perform the duties of his position. Members of the Legislature have no duties to perform as officers independently of other members or officers, but act only when assembled pursuant to law, and their duties may be said to begin and to end with voting upon questions submitted. The amount of their “pay ” does not depend upon their performing six or sixty days service.

They are required to attend an annual session in January, and may be convened on extraordinary occasions by theGovernor, and on such occasions are entitled to additional paj by way of mileage; and this again illustrates the suggestion that they ai'e not included among the officers who draw their salaries quarterly, the amount of their pay as mileage not being susceptible of accurate calculation because the number of occasions on which they may be convened cannot be anticipated.

We therefore conclude that the provision of the Constitution entitling members of the Legislature to a given amount of pay per annum means that they are entitled to so much for each legislative year; that the legislative year for 1868 commenced on the day fixed for the annual session in that year, and that the legislative year for 1869 commenced on the day of the annual session for that year.

We are therefore of the opinion that the “pay ” of members not being included in the term salary, and therefore not being required to be drawn quarterly, it is within the province of the Legislature to prescribe the time of its payment. For the court. Respectfully submitted, O. B. Hart, Associate Justice.