Opinion
No. 31263
Decided June 9, 1948.
Public officers — Statutes relating to compensation and allowances, strictly construed — Members of Board of Liquor Control — Compensation and allowances statutory — "Traveling expenses" comprehends costs and charges incurred on journey — Section 6064-5, General Code — Local subsistence, lodging, telephone calls and transportation expenditures, not reimbursed, when.
1. The members of the Board of Liquor Control of the state of Ohio are public officers and entitled only to the compensation and allowances provided by law.
2. Statutes relating to compensation and allowances of public officers are to be strictly construed, and such officers are entitled to no more than that clearly given thereby.
3. As commonly understood and accepted, the expression, "traveling expenses," comprehends transportation costs and other charges reasonably incident thereto incurred while on a journey, including lodging, food and kindred expenses.
4. The term, "traveling expenses," contained in Section 6064-5, General Code, in relation to members of the Board of Liquor Control, does not embrace expenditures for subsistence, lodging, telephone calls and local transportation made by a member of such board after arriving at his destination for the transaction of the business in which he is regularly and customarily engaged at the "central office" maintained for such purpose.
IN MANDAMUS.
In this action commenced in this court, Simon L. Leis, relator, who resides in the city of Cincinnati and is a member of the Board of Liquor Control of the state of Ohio receiving an annual salary fixed by the General Assembly and paid from state funds provided for the purpose, asks a writ of mandamus against Joseph T. Ferguson, respondent, auditor of the state of Ohio, requiring the latter to issue a warrant in the amount of $25.21 for necessary expenses incurred by relator in the discharge of his official duties as a member of the board. Such expenses, listed in a voucher duly presented to the respondent, are for railroad fare between Cincinnati and Columbus and for costs of lodging, meals and long distance telephone calls and streetcar and taxicab fares paid by relator while attending to official business in Columbus.
The cause is submitted upon the petition, answer, reply and a stipulation of facts. It is agreed that funds are on hand and available to pay such expenses, if proper.
Respondent in his brief and upon oral argument concedes that "relator is legally entitled to reimbursement for his expenses incurred while enroute to, and on return from, a meeting or session of the Board of Liquor Control in Columbus" and states that he has issued or will issue a warrant or warrants for the same. The item respecting railroad fare will, therefore, be eliminated from further consideration.
Mr. Isadore Topper and Mr. Leonard J. Stern, for relator.
Mr. Robert L. Drury, for respondent.
This being an action in mandamus, the precise point for decision is whether respondent should be directed to issue a warrant covering the described local expenses of relator as "an act which the law specially enjoins as a duty resulting from [his] * * * office." Section 12283, General Code.
In disposing of the controversy, the statutes quoted below are pertinent.
Section 6064-2, General Code, provides, in part:
"The Department of Liquor Control is hereby created, to consist of a Board of Liquor Control of four members, * * * and a Director of Liquor Control."
Section 154-17, General Code, recites, inter alia:
"Each department shall maintain a central office in the city of Columbus."
Section 6064-5, General Code, reads, in part:
"The Director of Liquor Control and each member of the Board of Liquor Control shall devote his entire time to the duties of his office and shall hold no other public position of trust or profit. * * *
"Each member of the Board of Liquor Control shall receive an annual salary * * *, together with his actual and necessary traveling expenses incurred in the performance of his official duties."
Here, we have a situation where relator receives a substantial annual salary for the performance of the duties of his office, the headquarters and principal place of business of the Board of Liquor Control is in the city of Columbus, and the relator incurred the expenses for which claim is made while in Columbus attending to the affairs for which he is compensated.
As we have seen, Section 6064-5, General Code, grants to each member of the Board of Liquor Control an annual salary plus "his actual and necessary traveling expenses incurred in the performance of his official duties."
In Black's Law Dictionary (3 Ed.), "travel" is defined as "to go from one place to another at a distance; to journey." And in the same volume, "expense" is defined as "that which is expended, laid out or consumed; an outlay; charge; cost; price." Combining the two definitions, "traveling expenses" are, strictly speaking, expenditures made in going from one place to another at a distance.
However, as commonly understood and accepted, the expression "traveling expenses," has a broader meaning and generally comprehends transportation costs and other charges reasonably incident thereto while on a journey, including lodging, meals and kindred expenses incurred during the trip. Under some circumstances, then, "traveling expenses" might cover the items claimed by relator, but in our opinion that expression as used in Section 6064-5, General Code, does not embrace such items contracted by a member of the Board of Liquor Control during the time he is present at the "central office" of the Department of Liquor Control in Columbus pursuing his usual and customary duties. See Hedrick v. Reeves, State Auditor, 46 S.D. 218, 191 N.W. 761. Compare Corbett v. State Board of Control, 188 Cal. 289, 204 P. 823.
It can hardly be said with confidence that the phrase "traveling expenses," standing alone and unexplained, includes expenditures for subsistence, lodging, telephone calls, local transportation, etc., made by one, receiving an annual salary for his services, after arriving at his destination for the transaction of the business in which he is regularly engaged on a full-time basis at the principal establishment maintained for such purpose.
The proposition is generally recognized that "the right of an officer to compensation for expenses incurred by him in the performance of an official duty must be found in a provision of the constitution or a statute conferring it either directly or by necessary implication, and the officer cannot recover compensation additional to the compensation fixed by statute for such expenses." 46 Corpus Juris, 1018, Section 246; 32 Ohio Jurisprudence, 1013, Section 153; 43 American Jurisprudence, 134, Section 341.
Moreover, it is a settled rule of construction both in this state and elsewhere that "statutes relating to the fees and compensation of public officers must be strictly construed in favor of the government, and such officers are entitled only to what is clearly given by law." 46 Corpus Juris, 1019, Section 250; Richardson v. State, ex rel. Prosecuting Attorney, 66 Ohio St. 108, 113, 63 N.E. 593, 594.
Relator represents that the respondent has in the past issued warrants to those in positions similar to relator's for expenses of the kind claimed here. Even if that were so, it would not necessarily be controlling. Besides, it is not plain from the pleadings and stipulation of facts that respondent has issued warrants for expenses of the character asserted by relator to those regularly serving in Columbus on annual salaries as members of state boards, commissions and agencies.
Although persuasive arguments are advanced supporting relator's claim, the court is not convinced that a clear legal duty rests on the respondent, under Section 6064-5, General Code, in its present wording, and under all the circumstances disclosed by the record, to issue the warrant sought. This being so, the writ is denied.
Writ denied.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, SOHNGEN and STEWART, JJ., concur.