POHNPEI SUPREME COURT
Appellate Division
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GOVERNOR JOHNNY P. DAVID ex rel THE STATE OF POHNPEI; NICHOLSON SOLOMON, Assistant to the Governor for Budget, Planning & Statistics, DION NETH, Pohnpei State Treasurer, JOHNNY P. DAVID, as a taxpayer of Pohnpei,
Petitioners,
vs.
THE POHNPEI STATE LEGISLATURE; THE HONORABLE ITOR A. HARRIS, ANNES LEBEHN, IOP T. LOHETE, HERCULANO C. KOHLER, TESIWO LIWY, QUIRINO I. MENDIOLA, NELSON PELEP, BERNELL EDWARD, JOSEPH MOSES, AMBROS T. SENDA, YOSUO PHILLIP, GERSON LEKKA, KASIANO JOSEPH, FELICIANO PERMAN, DACHUO JOHNSON, ISHMAEL LEBEHN, KENNIO FRANK, MIDION G. NETH, HERMAN SEMES, SALTER ETSE, VALERIO HALLENS, KIMIKO A. ELANZO, JOB MICAH and MANOA ALEXANDER, Administrative Officer,
Respondents.
PCA No. 252-94
OPINION
Ms. Andrea Hillyers, Esq. Acting Attorney General Attorney for Petitioners
Mr. Douglas Parkinson, Esq. Attorney for Respondents
Before: EDWEL H. SANTOS
Chief Justice
YOSTER CARL
Associate Justice
JUDAH C. JOHNNY
Associate Justice
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Argued: January 20, 1995
Decided: March 30, 1995
JUDAH C. JOHNNY, Associate Justice
PROCEDURAL BACKGROUND
This matter commenced by the filing of a petition in the Trial Division of this Court. In their petition, which was twice amended, Governor Johnny P. David ex rel the State of Pohnpei; Nicholson Solomon, Assistant to the Governor for Budget, Planning & Statistics; Dion Neth, Pohnpei State Treasurer; and Johnny P. David, as a taxpayer of Pohnpei, hereafter Petitioners, challenge the constitutionality of a certain appropriation by the Respondents as being in violation of Section 8 of Article 13, Section 5 of Article 11, and Section 12(2), Article 8 of the Pohnpei State Constitution.
By reason of the tremendous importance of the issues involving interpretation of the Pohnpei State Constitution, and in conformity with the custom of this Court to hear cases of such magnitude in the Appellate Division, this matter was referred to and heard by a full panel of three Justices of the Appellate Court.
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FACTUAL BACKGROUND
On August 9, 1994, the Pohnpei State Legislature, to wit, the Honorable Itor A. Harris, Annes Lebehn, Iohp T.Lohete, Herculano C. Kohler, Tesiwo Liwy, Quirino I. Mendiola, Nelson Pelep, Bernell Edward, Joseph Moses, Ambros T. Senda, Yosuo Phillip, Kerson Lekka, Kasiano Joseph, Felciano Perman, Dachuo Johnon, Ishmael Lebehn, Kennio Frank, Midion G. Neth, Herman Semes, Salter Etse, Valerio Hallens, Kimiko A.Elanzo, and Job Micah, hereafter Respondents, passed State Law No. 3L-64-94, the Comprehensive Budget Act for Fiscal Year 1995. On August 26, 1994, the Governor of the State of Pohnpei signed the bill into law but pursuant to Section 13, Article 8 of the Pohnpei State Constitution, exercised his Constitutional veto power over certain line items in the bill. Included in the Governor's item veto was that in Title IV, Section 4-2 (6) of the Pohnpei Comprehensive Budget Act of 1995, referenced as Official Expense Allowance in the amount of $115,000.00 which was to be equally divided and paid to each member of the Legislature no later than October 31, 1994.
On September 20, 1994, the Respondents, under authority of Section 14, Article 8 of the Pohnpei State Constitution, overrode the Governor's veto of the official expense allowance item of the Act.
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The Governor has, following the legislative override of his veto of official expense allowance item of the Budget Act, instructed the Department of Treasury not to release the funds. The Petitioners now bring this action seeking declaratory relief. In the Petition, Manoa Alexander is named a party Respondent, as the Administrative Officer of the Pohnpei State Legislature. The Petition would have this Court declare that the appropriation of expense allowance for members of the Pohnpei State Legislature is in violation of the Pohnpei State Constitution and is therefore void.
ARGUMENTS
The main and initial issue in this action is the constitutionality of appropriations by the Respondents of official expense allowance. As matters developed in this action, other subsidiary issues were raised. We discuss them as following:
I. JURISDICTION
Although the Respondents on December 18, 1994 formally filed a motion to dismiss, we did not address the motion until the matter was heard on the merits.
In support of their motion to dismiss, the Respondents argued that the fact that the appropriation has passed through the usual and appropriate political process,
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including consideration by both the legislative and executive branches of this government, and has become law, the court cannot intervene, because it has become a political matter.
We address the motion to dismiss first because it is a dispositive issue. For if we agree with the Respondents that the issue is a political question, we will order the action dismissed for lack of jurisdiction. To say it in other words, the bill has been introduced in the Legislature, considered and passed, and sent to the Governor as an Act for approval. The Governor has considered the Act and approved it, but vetoed certain items of the Act and returned it to the Legislature. The Legislature has considered the vetoed items and voted overriding the Governor's veto of the official expense allowance item in the Act. That portion has therefore become part of the Act. These are all done effectively under constitutional authority. These are political processes properly exercised by the executive and legislative branches of this Government. These being political processes in the competence of the Legislative and Executive branches, the court does not have jurisdiction.
We note that it is the appropriation of official expense allowance, which was vetoed and overridden, that is challenged as being unconstitutional and void. This Court is now asked to intervene to determine a question of
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controversy. The question of controversy is, whether the appropriation of official expense allowance is void as being in violation of the Pohnpei State Constitution.
Section 22 of the Pohnpei Judiciary Act of 1982, S. L. No. 2L-160-82 grants jurisdiction to this Court in a case of actual controversy, to declare rights and other legal relationship of other parties seeking declaration. The doctrine of judicial supremacy is well established in constitutional law that the courts have inherent authority to determine whether statutes enacted by a legislature transcend the limits imposed by constitution and to determine whether such laws are or are not constitutional. The People of Kapinaamaranai v. The Pohnpei Legislature, 1 PN. L.R. 135,15 150 (1985); Dexter Weital et al v. Annes Lebehn, 3 PN. L.R. 336, 370, 371 (1989) Tr. Div. This is what we are asked to do. We are asked to determine the dispute between the parties involving the question whether the appropriation of official expense allowance for members of the Legislature is or is not constitutional. The issue being such, it would follow therefore that the cause is properly within the jurisdiction of this Court.
II. ISAIS vs. ALLOWANCE
The Respondents, first in their motion to dismiss (pp 5-6) and again, in their brief (pp 2-5), argue that
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"allowances" referred to in Section 8 (1), Article 13 of the Pohnpei State Constitution are compensatory allowances. They urge that the Pohnpeian and the English versions of the Constitution should be read together when defining the terms "isais" or "allowance." They urge that the common and natural meaning of "isais tohrohr" is payment for services rendered. In other words, compensation in addition to straight salary, such as bonuses. They argue that the official expense allowance granted by the Appropriation Act is not a compensatory allowance; rather, it is an expense allowance. They contend that this allowance is designed to cover the Legislators' actual expense allowance incurred in furthering contacts and communications among each Legislator's separate constituency. Thus, they argue that Section 8 (1) of Article 13 of the Constitution governs only "isais" or compensatory allowances. The Respondents' view is that the official expense allowance found in the Budget Act is not "isais" and is therefore not governed by Section 8 of Article 13, and does not therefore come under the purview of the Constitutional provision. The Petitioners therefore cannot use the Constitutional provision to support their challenge of the Legislators' official expense allowance.
In response to the Respondents' analysis of "allowance" and "isais", the Petitioners argue that "isais" in Pohnpeian
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means to pay tribute, to repay a service or good deed, resorting to the Pohnpeian-English Dictionary. They argue that "dompe" in Pohnpeian means compensation. Therefore if the Respondents' analysis is correct, then Section 8 of Article 13 would have used the word "dompe" instead of the word "isais" in describing the word allowance.
The Respondents' analysis of allowances must fall. We note that at the time the framers were piecing the Constitution together, certain structural constitutional and statutory provisions were in effect in Pohnpei, such as the Constitution of the Federated States of Micronesia, and the Ponape District Charter. It can reasonably be concluded that when the framers picked a word or phrase which existed in Constitutions and laws at that time, they must have perceived the same meaning as then existing. Following this reasoning, we note that the Ponape District Charter was in effect at the time of the Pohnpei State Constitutional Convention in 1983. The Ponape District Charter was made part of Title 3 of the Code of the Trust Territory of the Pacific Islands. Section 519 of Title 3 of the Code sets forth salaries and allowances of members of the Ponape District Legislature. That Section restricts allowances to be " . . . reasonably related to official expenses." This being the meaning and limited purpose of allowances at that time, it must be implied that
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when the framers of the Pohnpei State Constitution framed the language of Section 8, Article 13 of the Constitution, they must have perceived allowances to have the meaning and limited purpose as then existed, or they would have specifically stated otherwise. It should follow that allowances as used in Section 8, Article 13 of the Pohnpei State Constitution includes official expense allowances. In our view, official expense allowance is not compensatory allowance as contended by the Respondents. Being so, it would be right to say that "official expense allowance" provided under Title IV, Section 4-2 (6) of the Pohnpei Comprehensive Budget Act of 1995, S.L. No. 3L-64-94 falls within the purview of Section 8 of Article 13 of the Pohnpei State Constitution.
III. CONSTITUTIONALITY OF THE OFFICIAL EXPENSE ALLOWANCE APPROPRIATION
The crux of controversy at issue in this action is the construction of the language of Section 8, Article 13 of the Pohnpei State Constitution, relating to allowances of elected and appointed officers of the Pohnpei State Government. Section 8, Article 13 reads as follows:
" Section 8. Compensation of Government Officials.
"(1) The salaries and allowances for all elected and appointed officers shall be set by law.
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(2) The salaries and allowances for all elected and appointed officers may be reapportioned every five years.
"(3) The salaries and allowances for all elected and appointed officers may be reduced at any time, provided that such a decrease applies to all such officers in an equal amount."
The Petitioners challenge the appropriation of allowances for members of the Legislature, arguing from various angles.
First, the Petitioners argue that the act of the Respondents in singling out only the members of the Legislature, and appropriating only to themselves an allowance, constitutes an illegal appropriation in that it is an illegal deprivation of the Petitioners' rights to also have allowances provided to all elected and appointed officers. They do not contend that all elected and appointed officers should receive the same rate of allowance given the Respondents by themselves. But the Petitioners contend that the issue of allowances can only be considered, that is, set, apportioned, or reduced, as to all or none of such elected and appointed officers. They contend that "the placing and usage of the word 'all' in Article 13, Section 8, which is nonessential to the provision of compensation," nonessential being that the provision could still grant compensation to
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covered officers even if the word 'all' is excluded, "provides clear intent" of the framers "that the salaries and allowances of the covered officials can only be set, reapportioned, or reduced as to ALL such covered officials at one given time." They reason that if the word "all" was excluded from Section 8, Article 13, there would be no issue as to whether just one group of officers could have their salaries or allowances set, reapportioned or reduced singly. The Petitioners go on to argue that in construing constitutional and statutory provision, the fundamental rule is that, effect must be given, if possible, to every word, clause, and sentence of the provision being construed, so that no part of the provision will be inoperative or superfluous, void or insignificant. Citing Section 46.06 of Sutherland Statutory Construction. Following this fundamental rule, the Petitioners therefore conclude that the inclusion of the word "all" in Section 8 of Article 13, must therefore be construed exactly as it says, that salaries and allowances of all elected and appointed officers shall be or will be set, reapportioned or reduced, simultaneously for all at the time when such setting, reapportioning, or reducing occurs, by law.
We are also invited to adhere to the established fundamental principle of constitutional construction,
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providing that effect must be given to the intent of the framers of the organic law and of the people adopting it. 16 Am Jur 2d. Constitutional Law, Section 92. So that when the framers of the Pohnpei State Constitution wrote Section 8, 6 Article 13, they intended that officers of the executive and judicial branches of the Government also receive allowances, unlike the preceding provisions for allowances of the Ponape District Charter which was silent on allowances for such officers.
Because of their analysis that the use of the word "all" means that the Legislature cannot appropriate allowances to one single group of covered officers, but must do so to apply to all covered officers, the Petitioners would have us conclude that Section 8 of Article 13 of the Constitution is a self-executing limitation on the power of the Legislature to change compensation, and in this case, allowance for only one class of officers.
The Respondents look at the provisions for allowances contained in Section 8 of Article 13 of the Pohnpei State Constitution differently. In their view, the use of the word "all" and the word "koaros" in Section 8, Article 13 clearly means that all Government officers are bound by the requirement that only the Legislature sets salaries and allowances. That is to say that no officer can give himself
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or his subordinates a salary or allowance which is not set by the Legislature. The decisions regarding which officer, if any, should receive allowances, and how much those allowances should be, are political decisions properly left to the Legislature by the Constitution.
To begin with, we note that the parties do not contest that elected and appointed officers as referred to in the Constitution includes all State Government elected officers as well as State Government officers appointed by the Governor with the approval of the Legislature.
Two facts need to be kept in mind in our effort to construe the meaning of section 8, Article 13 of the Pohnpei State Constitution, as it pertains to the subject of the matter before us. We are mindful that on December 12, 1988, the Legislature enacted into law S.L. No. 2L-77-88, which amended the law that sets forth allowances for members of the Pohnpei State Legislature. We are also mindful that, particularly during the period involved in this action, the Legislature has appropriated in each annual Comprehensive Budget Act, allowances for its members. The period covered in this action includes the fiscal years 1995 and the prior three fiscal years as we have expanded by our order of December 13, 1994 granting the Petitioners leave to amend their amended petition.
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In each of the pleadings of the Petitioners (original, amendment to the petition, and amendment to the amendment), the Petitioners repeatedly challenged the appropriations of official expense allowances for fiscal years 1995 and the foregoing years.
In examining the appropriation laws, and in particular, the FY 1995 budget law and Standing Committee Report 278-94 of the Committee on Judiciary and Governmental Operations, we note that official expense allowance was included in the budget pursuant to Section 1-8 (4) of the Ponape District Code as amended. This is to say that the inclusion of dollar figures in allowances in each budget is in fulfillment of the State Law that establishes allowances for members of the Legislature. Because the appropriation law (FY 1995 Budget Act and prior budget laws) are merely fulfillment of the official allowance law, one cannot challenge the validity of the appropriation laws without effectively challenging the law that actually sets allowances. To say it in simpler terms, the Petitioners cannot challenge the appropriation of allowances in the budget acts without challenging the allowance law. The budget acts are merely appropriation laws. In terms of official expense allowances, each budget act merely appropriates funds as set and authorized by the allowance law. Here, the allowance law is Chapter 1, Section
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1-8 of the Ponape State Code. Section 1-8 of Chapter 1 of the Ponape State Code provides in sub-section (4) a,
"Each member of the Ponape District Legislature, shall be entitled to expend per calendar year a sum or sums to be determined annually in the General Appropriation Act for official expenses including, but not limited to, staff, supplies, materials, equipment, postage, communication, travel, reproduction of materials and entertainment."
Sub-section (4) b then authorizes appropriations as follows,
"There is authorized for appropriation out of the General Fund of the Ponape District legislature such sums as shall be necessary to carry out the purposes of this Subsection."
Sub-section (4) has been reworded and amended, as discussed later in this opinion. We note now however, that while Sub-section (4) b has since been slightly reworded, the intent of the sub-section has not been changed. It is therefore the current law that provides for official expense allowances.
We are cognizant that Section 1-8 (4) a and b was effected before November 8, 1984, the effective date of the Pohnpei State Constitution. However that law, with its amendments have been transitioned into the Constitutional Government, and is presently in effect. See Section 3 of S.L. No. 3L-33-84, providing,
"Continuation of laws, ordinances and regulations. All laws of the State of Ponape, local government ordinances, and administrative regulations in force
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immediately before the effective date of the Constitution of Pohnpei shall, to the extent they are consistent with the Constitution, continue in force 3 until they expire by their own limitations or are amended, superseded or repealed."
also see State of Pohnpei v. Mack, et al, 2 PN L.R. 269, 291. (1987) It is this law therefore, that Section 8, Article 13 of the Pohnpei State Constitution speaks to. All the budget laws are merely appropriations under Section 1-8 (4), Chapter 1 of the Ponape State Code. When challenged as is done in the case at bar, it is that law, rather than the budget law, that we look to, and this is what we now do.
It is clear that the only law that currently sets allowances for government officers in this State is Chapter 1, Section 1-8, Sub-section 4 of the Ponape State Code. That law, now challenged by the Petitioners, sets official expense allowances only for members of the Pohnpei State Legislature. That is the crux of the dispute in this action.
We have carefully considered the views of the parties. We have carefully deliberated on the views argued with supporting data, such as Committee Report No. 91 by the Committee on Judiciary and Governmental Structure of the Pohnpei Constitutional Convention. Our careful deliberation leads us to conclude that when the framers hammered Section 8, Article 13 into the Constitution, they intended that all elected and appointed officers be entitled to receive allowances as will be set by law. They intended officers to
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include elected State Government Officers and officers of the State Government who are to be appointed by the Governor subject to approval of the Legislature. We believe that the framers were cognizant of the drain on the financial resources of the Government and the economic impact it will have, if they would mandate that once allowance is set for a group of officers, at the same time, such allowance must be set for all other officers simultaneously. We believe that the framers did not intend to create in the Constitution, a duty that would be impossible for the Government to perform. We believe that the framers did not intend to place in the Constitution, a mandate that would destroy the ability of the Government to continue to exist.
We believe therefore that the intent of the framers in writing Section 8, Article 13 of the Constitution was to give entitlement of allowances to all elected and appointed officers of the State Government. We believe further that, in writing section 8, Article 13 into the Constitution, the framers intended to leave the discretion to the Government to determine, based on legitimate needs, and set by law, which officers may receive allowances, including how much and when such allowances may be paid. We do not believe that Section 8, Article 13 of the Constitution is a self-executing limitation on the Legislature in setting allowances as the
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Petitioners urge us to believe. We believe that Section 8, Article 13 of the Pohnpei Constitution empowers the Pohnpei State Legislature to set allowances to elected and appointed officers of the Pohnpei State Government. We believe in the view that it is within the political discretion of the Legislative branch of the Government to set allowances for all such covered officers by one single law, or in different laws, or to set allowances only to a group or class or classes of covered officers in differing sums.
Second, the Petitioners urge us to hold that the appropriations in issue are invalid as being violative of Section 5 of Article 11 of the Pohnpei State Constitution. For purposes of this discussion, Section 5 of Article 11 reads,
"Section 5. Taxation and Appropriation for Public Purposes. No tax may be levied or money appropriated except for public purposes."
Here the Petitioners went at great length in distinguishing the use of funds for public purposes as against for private or personal purposes. The object of the Petitioners' argument is that the funds that members of the Legislature are receiving in official expense allowance have not been used totally for public purpose, but that these funds have also been used for private purposes. The Petitioners argue therefore that even if we were to find that
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the provisions of the official expense allowances in the challenged appropriation laws are not in violation of Section 8, Article 13 of the Constitution, this Court would still be authorized to examine whether the allowances are in fact, for official or personal expenses, so that if we are to find that such allowances are in fact, used for personal expenses instead of official expenses, such use would be in violation of both Section 8, Article 13 as being illegal increase in compensation, and in violation of Section 5, Article 11, being an illegal appropriation not made for public purposes. We are therefore urged to conduct an examination and make findings of facts as to the character of the expenses and order accounting of expenses by the Respondents.
It is clear to us that, for us to determine that the use by any member of the Respondents, of official expense allowance funds to be not within public purpose, evidentiary proof will be required. This is the reason for the urging by the Petitioners that we conduct examination and make findings of facts as to the character of expenditures. Until such evidentiary proceeding is done, the court is not capable of making findings of facts.
While it has been a custom of this Court to refer and hear cases of important issues involving interpretation of the Pohnpei State Constitution in the Appellate Division of
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this Court, we remain cautious of the mandate of Section 4, Article 10 of the Pohnpei State Constitution, which delineates original and appellate jurisdictions in the divisions of this Court. So that, where evidentiary trial and investigative proceedings will be required, we will be wary to do so in this division, and will defer original matters to the Trial Division of this Court. For this reason we abstain from getting into that function, and therefore refrain from further discussion on the issue of constitutionality of the challenged appropriations, on account of use for personal purposes rather than for public purposes, as the Petitioners allege.
IV. CONSTITUTIONALITY OF STATUTORY AMENDMENT
The Petitioners in their Initial Brief contend that "the appropriations are also illegal as being in violation of the Constitution in that it amended S.L.No. 2L-77-88 without complying with Section 12(2) of Article 8 of the Ponape Constitution." They argue that while Section 12(2) of Article 8 of the Constitution provides that, when amending a law, each section of the law to be amended shall be set forth in the amending bill and reenacted at full length, the Fiscal Year 1995 appropriation at issue in this case contained the following language,
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"Provided, that notwithstanding Subparagraph (1) of Paragraph (c) of Subsection (4) of Section 1-8 of the Ponape District Code, as amended, the sum herein appropriated shall be equally divided among the members and that not more than 100 percent of the sum allotted to each member shall be paid to him or her no later than October 31, 1994."
They go on to say that the appropriation for FY 1994 contains the same language, whereas those for FY1993 and FY 1991 provide that no more than fifty percent of the sum shall be paid within ten days of the act becoming law, with the remaining fifty percent to be paid no later than January 15,of 1993 and January 10 of 1991 respectively. The FY 1992 appropriation did not contain any payment schedule language.
The Respondents, however, in their Opposition Brief at page 22, are of the view that the Petitioners are asking the Court to investigate procedural irregularities in the appropriations and in statutory record-keeping requirements, and that the Petitioners "do not specifically ask the Court to declare the appropriation unconstitutional on those procedural grounds, but apparently either impliedly ask for such a declaration or ask the Court to order that those irregularities be corrected." They urge, accordingly, that any such declaration or order can only be applied prospectively and therefore cannot properly affect the outcome of this case, but could only impose requirements on
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future procedure; an averment that the Petitioners oppose in their Reply Brief, reaffirming their request.
Notwithstanding the position of the Respondents on this issue, argument of the case clearly shows that the Petitioners are challenging the constitutionality of the appropriation act which effected the alleged amendment of the allowance authorization law. In any such case, this Court is called upon to examine the nature of the amendment in the light of constitutional limitations and to declare whether or not the amendment, including the procedure followed in its making, is in conformity with constitutional requirements. We therefore consider that a declaration by this Court regarding the constitutionality or otherwise of the said amendment is appropriate.
One of the important factors to consider in coming to a decision on this issue is whether the act making the appropriation is an amendatory act. An amendatory act changes the scope or effect of an existing statute by adding thereto, omission, or substitution of provisions, which do not wholly terminate the existence of the statute, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form. Generally,,such an act indicates a legislative intention that the meaning of the statute has been changed and raises a presumption that
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the legislature intended to change the law. An amendatory act must comply with constitutional requirements for such acts. Any such act is unconstitutional for failure to comply with Constitutional requirements. People ex rel Larson v. Thomson, 44 N.E.2d 899, 900, 901. Accordingly, in determining whether the act making the appropriation of official expense allowances for members of the Legislature is amendatory of Section 1-8 (4)(c)(i) of Chapter 1 of the Ponape State Code, as further amended by S.L.No. 2L-77-88, it is immaterial whether it professes to amend or not, we must compare the two, and even if it purports to be complete in itself, if it intermingles different provisions with the old ones or adds new ones, creating a new law from the prior act and the new act together, it is amendatory. See Board of Education v. Haworth, 113 N.E. 939, 940.
Comparing therefore, the text of the proviso to the FY 1995 Appropriation Act quoted earlier relating to the official expense allowances of the Respondents to the language of Section 1-8 (4) (c) (i) of Chapter 1 of the Ponape State Code, as further amended by Section 1 of S.L. No. 2L-77-88, we find that the purported amendment makes changes in the method of payment of the said allowances as prescribed in the Code. An act making any such changes is amendatory in character. We hold therefore that the proviso
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contained in the FY 1995 appropriation prescribing a new method of payment of official expense allowances is amendatory. Being amendatory, it must be made in accordance with constitutional requirements. We note that these requirements were not met. But what are these requirements?
The provision of Section 12(2) of Article 8 of the Pohnpei State Constitution which is alleged to have been violated by the purported amendment reads,
"Each section of the law to be amended shall be set forth in the amending bill and reenacted at full length."
Literally construing these words, we believe the Constitution prohibits statutory amendments by merely striking out and inserting amended sections rather than setting out and publishing at length, the entire text of the Section of the law to be amended. In short, the Constitution prohibits "blind" amendments for they can be incomprehensible.
The language of Section 12 (2) of Article 8 of the Pohnpei State Constitution is susceptible to ambiguity in the sense that it does not set out clearly whether it means that only the section to be amended is required to be reenacted at full length, or whether it means that the section of the law to be amended be set forth in the amending bill, but that the entire law be reenacted at full length. As we see it, we are
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again of the opinion that the framers were careful not to create a requirement in the Constitution that will be cumbersome to the Government to perform, and that will be a drain on the economic resources of the Government. The framers must have been mindful that as the government develops and laws become complex, voluminous bodies of laws will come into existence which will require constant amendments to meet the demands and changes inherent in development. We believe therefore that the framers did not intend that the entire law be reenacted when a section of it is amended, but that the section of the law to be amended be set forth in the amending bill, and the section reenacted at full length.
We know that an important reason for having constitutional limitation such as set forth in Section 12 (2) of Article 8 of the Pohnpei State Constitution is to ensure that the legislators and, of course, the general public including lawyers, and the court, are aware of the nature and content of the law which was being amended, and the effect of the amendment upon it. Flanders v. Morris, 558 P2d 769 (1977). The Constitutional limitation eliminates uncertainty and difficulty of correctly reading the original section as later changed. People v. Western Fruit Growers Inc. et al., 140 P2d 13.
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We acknowledge the fact that text writers have questioned the desirability of a constitutional limitation such as contained in Section 12 (2) of Article 8 of the Pohnpei State Constitution, and thus advocated a liberal judicial attitude in applying it. But, inasmuch as we appreciate this view, we are constrained to say that this Court is a court of law and not of policy. Ours is to enforce the policy as we find it in the law. Not until we discern a change of policy in the state of the law, we are inclined to adopt a strict judicial attitude to give effect to the existing policy. A strict judicial attitude will be in keeping with the mandatory language of the Constitutional requirements of the said Section 12 (2) of Article 8 of the Pohnpei State Constitution.
Judicial opinion in other jurisdictions holds that if an act is an amendment of a statute, and the section intended to be amended is not set forth and published at full length, the act is unconstitutional, except when the act constitutes a repeal of the statute. Golconda Lead Mines v. Neill, 350 P2d 221, citing 82 CJS, Statutes, Section 261. Thus, it has been held that a constitutional provision that an act revised or the section of an act amended shall be set forth at full length is mandatory and must be obeyed so that the statute, upon amendment, will express a complete
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statement of the law as amended, and that failure to comply with the constitutional requirement renders the act invalid. Rouke v. Department of Labor and Industries, 249 P2d 236. See also Board of County Commissioners v. Oklahoma Tax 6 Commission, 212 P2d 462, holding that the noncompliance with a mandatory constitutional provision relating to the amendment of a statute renders the amendment invalid.
In the light of the guidance offered by the decided cases, and by reason of the use of the word "shall" in the language of Section 12 (2) of Article 8 of the Pohnpei State Constitution, we conclude that the provision of that section is positive and mandatory. It serves to achieve the purposes hereinbefore set out, and we think it is reasonable. For these reasons, we are of the view that the failure by the Pohnpei State Legislature to comply with the constitutional requirements relating to amendatory acts is fatal. The purported amendment contained in the FY 1995 Comprehensive Budget Act relating to the manner of payment of official expense allowance has to fall.
Our duty in this matter is not complete if we fail to declare the effect of the unconstitutional amendment on the original act. In this regard, we make it clear at first that, in law, if an amendatory act is wholly invalid, the statute it purports to amend is held to remain in full force.
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Frost v.Corboration Commission, 278 US 515, 73 L Ed 483, 49 S.Ct. 235 (1929); Ross v. Gashi, 351, F. Supp. 949 (D Hawaii,1972). In the instant case, what the FY 1995 Appropriation Act purported to amend in regard to the payment of official expense allowances was Section 1-8 (4)(c)(i) of State Law No. 2L-77-88. As the purported amendment in the FY 1995 appropriation is invalid, Section 1-8 (4)(c)(i) of S.L. No. 2L-77-88 is not amended. But is it a valid law?
S.L. No. 2L-77-88, as can be seen in its title, is an amendatory act. It purports to amend Section 1-8 of the Ponape State Code, which relates to salaries and allowances for members of the Pohnpei Legislature. Section 1-8 (4) (c) (i) of this act provides,
"The Administrative Officer of the Legislature shall effectuate equal quarterly payments of the sum or sums allotted to each member of the Legislature per fiscal year to be due and payable to each member. Payment to members shall be made on the tenth working day of each quarter of the fiscal year." Emphasis added
The language of the manner of payment of allowances of this section differs from that contained in the original law which is in the Ponape State Code. The relevant provision in the Ponape State Code is found in Chapter 1, Section 1-8 (4) c, reading,
"Each member of the Legislature shall submit written requests for, and expenditures and receipts for the expenditures of funds from the official expense allowance to the Administrative officer of the
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Legislature, who shall upon approval of the written request by the Speaker signified by affixing his signature and the date thereto, administer and expend the sums specified in this subsection."
It is clear that Section 1-8 (4)(c)(i) of S.L. No. 2L-77-88 would change the manner of payment of allowances from the provisions of the original Code. If Section 1-8 (4)(c)(i) is an amendatory section, it must conform to limitations of Section 12(2) of Article 8 of the Pohnpei State Constitution.
In our review of Section 1-8 (4)(c)(i) of S.L. No. 2L 77-88, we find that S.L.No. 2L-77-88 would amend the Pohnpei Code, as amended, by further amending Section 1-8 of the Code. This act indicates to us that Section 1-8 of the Code has been previously amended. We need to determine if the language of that prior amendatory law relating to payment.of allowances is proposed to be amended by Section 1-8 (4)(c)(i) S.L.No. 2L-77-88.
We find that the law that precedes S.L. No. 2L-77-88 which amended Section 1-8 of the Code is S.L. No. 1L-71-86. In comparative analysis, the sections relating to payment of allowances in the laws are read as follows: In S.L.No. 2L77-88, Section 1-8 (4)(c)(i) reads,
"(c) Administration.
(i) The Administrative Officer of the Legislature shall effectuate equal quarterly payments of the sum or sums allotted to each member of the Legislature per fiscal year to be due and payable to each member. Payment to members shall be made
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on the tenth working day of each quarter of the fiscal year." Emphasis added
By comparison, Section 1-8 (4)(c)(i) as inserted by Section 4-1 of S.L. No. 1L-71-86 contains,
"(c) Administration.
(i) The Administrative Officer of the Legislature shall effectuate equal quarterly payments of the sum or sums allotted to each member of the Legislature per fiscal year to be due and payable to each member. Payment to members shall be made on the tenth working day of each quarter of the fiscal year." Empahsis added
It is clear that the language of the sections of these two laws is identical. Therefore, Section 1-8 (4)(c)(i) of S.L. No. 2L-77-88 is not an amendment to Section 1-8 (4)(c)(i) of S.L. No. 1L-71-86.It is accordingly not affected by the amending requirements of the Constitution. If Section 1-8 (4)(c)(i) of S.L. No. 1L-71-86 is valid, then Section 1-8 (4)(c)(i) of S.L. No. 2L-77-88 is the existing law.
Because validity of Section 1-8 (4)(c)(i) of S.L. No. 2L-77-88 depends on validity of the same provision in S.L. 20 No. 1L-71-86, we are compelled to determine the validity of that prior law.
Again, as can be seen in its title, S.L. No. 1L-71-86 purports to amend various laws. In regard to payment of official expense allowances, Title IV, Section 1-4 of this law reads
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"Section 1-4. Amendment to Section 1-8 of the Pohnpei Code. Section 1-8 of the Pohnpei Code as amended, is repealed in its entirety and a new Section 1-8 is inserted in lieu thereof ..."
Section 1-4 then sets forth a new Section 1-8 of the Pohnpei State Code. In regard to the provision on payment of 6 allowances, Section 1-4 reads at Section 1-8(4)(c)(i),
"(c) Administration.
(i) The Administrative Officer of the Legislature shall effectuate equal quarterly payments of the sum or sums allotted to each member of the Legislature per fiscal year to be due and payable to each member. Payment to members shall be made on the tenth working day of each quarter of the fiscal year." Emphasis added
It may be worthy for us to note that in regard to the manner of payment of allowances, the law that existed at the time Section 1-8(4)(c)(i) of S.L. No. 1L-71-86 came into effect, which, by operation of Section 1-4 of S.L. No. 1L-71-86, was repealed, was S.L. No. 3L-10-84.Section 1 of that prior law reads,
"Section 1. Paragraph (c) of Subsection 4 of Section 1-8 of the Ponape State Code as established by D.L. No. 4L-130-78, as amended, is hereby further amended to read as follows:
"(c) Administration.
(i) The Administrative Officer of the Legislature shall effectuate equal quarterly payments of the sum or sums allotted to each member of the Legislature per fiscal year to be due and payable to each member. Payment to members shall be made on the tenth working day of each quarter of the fiscal year."
[pg. 32]
This section is expressly repealed by Section 1-4 of S.L. No. 1L-71-86, even though in inserting a new section thereof, Section 1-8 (4)(c)(i) of S.L. No. 1L-71-86 reenacts the same language of the section on payment which it intended to repeal.
Does Section 1-4 as it reenacts Section 1-8 (4)(c)(i) into law fall within the limitations of the Constitution? It would, if the section is considered an amendatory section. Here, we are guided by the view generally held in the Courts that in enforcing the constitutional limitation that no act shall be amended by reference to its title only, but the act as amended shall be set out and reenacted at length, the Courts have sought to uphold the validity of the legislation and have avoided classifying an act as an amendment wherever possible. In order to sustain a legislation, the Courts have tested the amendatory character of an act by its form. Thus, if an act does not purport to amend a prior act, either directly, or by inserting or striking words, it is not an amendatory act within the constitutional limitation. Usually the old law is repealed. If there is no express repeal, there may be a repeal by implication. See Sutherland Statutory Construction, Section 22.17.
But Section 1-4 of S.L. No. 1L-71-86 specifically repeals Section 1-8 of the Pohnpei State Code. This includes
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Section 1-8 (4)(c)(i) of S.L. No. 3L-10-84. Statutes which expressly repeal a specific prior act, either in whole or in part, are generally not within the purview of the Constitutional provisions which prohibit amendment of a statute by mere reference to its title. Where the legislature has expressly declared that the former law is changed by express "repeal," it would seemingly be an exaggeration to hold the legislation amendatory. Sutherland Statutory Construction, Section 22.23. Therefore, Section 1-4 of S.L. No. 1L-71-86, being an express repeal provision, is not within the scope of limitations of Section 12(2) of Article 8 of the Pohnpei Constitution. It follows that the new Section 1-8 inserted by Section 1-4 of S.L. No. 1L-71-86 is valid and has the force of law.
One may construe that the law governing the manner of payment in Section 1-8(4)(c)(i) of S.L. No. 3L-10-84 lost its effect because of its repeal by Section 1-4 of S.L. No. 1L71-86. It may be worth saying that where a statute is repealed by a new statute which relates to the same subject matter, and which reenacts substantially the same provisions of the earlier statute, and the repeal and reenactment occur simultaneously, the provisions of the original statute which are reenacted in the new statute are not interrupted in their operation by the so-called repeal; they are regarded as
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having been continuously in force from the date they wereoriginally enacted. See 73 Am Jur 2d, Statutes, Section 391. Also 77 ALR 2d 336, 341 Section 3.
It should follow that the effect of the unconstitutionality of the manner of payment proposed to be amended by the FY 1995 Budget Act, is that the existing law governing payment is as presently set forth in Section 1-8 (4)(c)(i) of S.L.No. 3L-10-84, as reenacted in Section 1-8 (4)(c)(i) of S.L. No.1L-71-86, and subsequently reenacted in Section 1-8(4)(c)(i) of S.L. No. 2L-77-88.
V. INELIGIBILITY TO RECEIVE ALLOWANCES DURING TERM
The Petitioners also contend in their challenge of official expense allowance that Respondent members of the Pohnpei State Legislature are ineligible to receive the official expense allowances appropriated in the FY 1995 Pohnpei Comprehensive Budget Act because of the "constitutional scheme of limitation of power that one branch of government could not increase their salaries or allowances during their four year terms of office unless such increase also was given to all covered officers." This contention must fall as being superfluous. While a limitation providing that a "statute increasing salaries may not apply to the legislature that enacted it, nor until after a general election has occurred between the passage of the statute and
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its being applied ," was at one time in effect in this State, this limitation is not in the Pohnpei State Constitution. This restrictive language applied to the Legislature during the Chartered Ponape State Government. The Pohnpei State Constitution came into effect on November 8, 1984, abrogating that limitation, so that there has been, since the inception of the provisions of the Pohnpei State Constitution, none of such constitutional limitation on the Pohnpei State Legislature. We find two prohibitive provisions relating to increases in salaries and allowances in the Constitution. In section 6 of Article 8, we find the language that prohibits a member of the Legislature from taking a new office which has been created or the compensation of which is established or increased by statute at any time during his term in the Legislature. Again, we find in Section 8(2) of Article 13 the language that limits reapportionment of salaries and allowances to every five years. For this reason, we say no more.
CONCLUSION
In accordance with the foregoing discussions, we DECLARE and ORDER as follows:
1. AS TO JURISDICTION:
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The cause of action in this case is properly within the jurisdiction of this court. The motion to dismiss is Ordered denied.
2. AS TO THE TERM "ISAIS" OR "ALLOWANCE:"
a. The term "isais" or "allowance" stated in Section 8(1), Article 8 of the Pohnpeian and English versions respectively of the Pohnpei State Constitution relates to official allowances and not compensatory allowance.
b. Official expense allowance provided under Title IV, Section 4-2 (b) of the Pohnpei Comprehensive Budget Act of 1995, S.L. No. 3L-64-94 falls within the purview of Section 8 (1) of Article 13 of the Pohnpei State Constitution.
3. AS TO CONSTITUTIONALITY OF THE OFFICIAL EXPENSE ALLOWANCE APPROPRIATION
a. Section 8, Article 13 of the Pohnpei State Constitution gives non-self-executing entitlement of allowances to all elected and appointed officers of the Pohnpei State Government.
b. Section 8, Article 13 of the Pohnpei State Constitution vests discretionary power in the Pohnpei State Legislature to set by law, allowances for elected and appointed officers of the State Government.
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c. Section 8 Article 13 of the Pohnpei State Constitution grants the power, within the political discretion of the legislative branch of the Pohnpei State Government, to set allowances for all covered officers at one time by a single law, or in different laws, or to set allowances only to a group or class or classes in differing sum or sums.
d. Section 1-8 (4) of Chapter 1 of the Ponape State Code setting official expense allowance for members of the Pohnpei State Legislature is constitutional and therefore valid and has the effect of law.
e. The appropriation of official expense allowance made under Title IV, Section 4-2 (b) of the Pohnpei Comprehensive Budget Act of 1995, including appropriations of official expense allowance in fiscal years 1994, 1993 and 1992, to the extent that each appropriation was made pursuant to Section 1-8, Sub-section 4 of the Ponape State Code, is constitutional and therefore valid and has the force and effect of law.
f. We abstain and do not reach the issue of constitutionality of appropriation of official expense allowances based on the manner of expenditure under Section 5, Article 11 of the Pohnpei State Constitution.
4. AS TO CONSTITUTIONALITY OF STATUTORY AMENDMENT
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a. The purported amendment contained in the FY 1995 Pohnpei Comprehensive Budget Act relating to official expense allowance is unconstitutional and therefore void and has no effect of law.
b. The law that governs the manner of payment of official expense allowance remains to be S.L. No. 3L-10-84, Section 1-8 (4)(c)(i) as reenacted by S.L. No. 1L-71-86, Section 1-8 (4) (c) (i) .
5. AS TO INELIGIBILITY TO RECEIVE ALLOWANCES DURING TERM
The Pohnpei State Constitution does not prohibit Members of Pohnpei State Legislature to receive increases in salaries and allowances as set or reapportioned by law in accordance with Section 8 of Article 13, at any time during their term.
Dated: March 30, 1995.
/s/
EDWEL H. SANTOS
Chief Justice
/s/ /s/
YOSTER CARL JUDAH C. JOHNNY
Associate Justice Associate Justice
Entered: March 30, 1995.
/s/
Acting Clerk, Appellate Division