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Show PAGE FOUR THE SUPREME DAILY of foreclosure, unappealed from, must stand absent any timely appeal. 5. independent It w.'tri-s- er.p ard s, s E, performs its work aicc'd'igtc .ts of any supt rv s A c. l' p:ep d. i the result es s ad t.d fr i ;opt:'a-- OF THE STATE OF UTAH f. takes o.i ft pe;. mittee. Leg Vernon Romney, Attorney General, Plaintiff and Appellant, No. 11912 Mav 8, 1970 We Haven J. Barlow, et al. , Defendants and Respondents. L. M. sJa--re- . Cummings, Clerk hink a'd h- tutes the holding cf a certainly a c!v.i ci::ce ' ELLETT, Justice: The Attorney General appeals from a summary judgment holding Chapter 71, Laws of Utah 1967, to be constitutional. That Act provides for a per diem of $25 plus expenses to each member of the Legislative Council. The Legislative Council was created by Chapter 67, Laws of Utah 1947, which was amended by Chapter 4, Laws of Utah 1966, Second Special Session, reading as follows insofar as material: There is created a legislative council of sixteen members of the legislature. Four members shall be appointed from each major political party by each house upon recommendation of each party caucus. The president of the senate shall be one of the four appointees from the political party with which he is affiliated and the speaker of the house of representatives shall be one of the four appointees from the political party with which he is affiliated. In the event that either the president of the senate or the speaker of the house deems it inadvisable to serve on the council he shall then appoint another member from his respective body. The council shall choose its own chairman and from among the members to serve for the duration of the term of house members. If the chairman is chosen from the senate, the shall the be selected from house of representatives, and vice versa. Said council shall meet in the state capitol not later than thirty days after the effective date of this act, for the purpose of effecting its organization and prescribing such rules for its governing as may be necessary. vice-chairm- an vice-chairm- an The defendants at the time this suit was filed were members of the Legislature which enacted Chapter 71, supra, and were all appointed to the Legislative Council during that same term. The Attorney General contends that Chapter 71, supra, violates the provisions of Article VI, Sec. 7, of the Utah State Constitution, which reads: u: dit:r i s c o?: i Ar ofj.ee. : c' merf.vm. !' ains .c 'hi rxi rc'si f he pc. wees govt rr. mer of i powers the i r autho' ..v. pissi-ss.d pe rde r cr- jn. ess i jr of r ? c. .c-- - The office a membe the requirements as stt cu 1. The Court)' was 2. It ,'s cf B go.e by s . - . p,r- Phc- 't s ni ioifi'i. v Cor.sT' u. Requ.s .. as, U. i - - w of c ' . ii rea'icn and defiri-ti- or or Legislature, or r rnt r a.: power, ar.d jpe or cff.ctrs. . Hr Leg.s a' .e Council fifs squarely into ac-k'- s crta'td Law I) c tior.ary abjvc by the Leg.' slat arc-- : fij.es regular session of dft.r-- the of :i - odd - i-- S'a'e Cooperation le : .e aoir.fy 'f' o hci'h pe . Com- houses of the wer ar.d p rfnrins every :esc' u' or of lh- - Lc g. s :a'.ur e. o: a iabo-- : or g.slaTvt ("oir. '.i cor sta saiac, s $25 pe: day, it is L p ce. he .. 1 i-- . v1 of profit or trust. Such a result was occasioned by the enactment of Chapter 71, Laws of Utah 1967, making the office one of profit. We do not think this result was ever contemplated or intended by the Legislature, and this is but another reason why we must hold Chapter 71, Laws of Utah 1967, to be unconstitutional and void. There is no doubt but that the members of the Cour.c.l have peiformed a good work for the State of Utah, and insofar as that work has been in the line of duty as a legislator, the pay prescribed by Section 9, Article VI, of the Constitution, must be accepted as the entire remuneration for such work. Insofar as the work may have been beyond the functions of a legislator, then the Council members may not receive extra remuneration if they are to retain their status as legislators. If the duties required of the Council members are so onerous and burdensome as to require a salary or a per diem, then the law must be amended so as to appoint someone other than legislators to fill the office. The judgment of the lower court is reversed. No costs are. awarded. WE CONCUR: j. Allan Crockett, Chief Justice R. L. Tuckett, Justice CALL1STER, Jus vice: (Cor curiing) concur with the majority opinion, but in addition I am impressed that Section 9, Art.cie Vi, of the Constitution of Utah, is dispositive of the issue. At the time of the enactment of this challenged legislation. Section provided: The members of the. Legislature shall receive such compensation., rot exceeding $500.00 a year for the legislative term and$5. 00 a day expenses while actually in session, and mileage as provided by law. I 9 Section 9 by mandate establishes the absolute limit as to the compensation a member of the Legislature may receive, the instant legislation departs therefrom In aLcmpting to exceed this limit. "The provisions of this Constitution are mard.i'.ory and prohibitory, unless by express words they are declared t.o be otherwise." 1. See Stc. 26, Article I, which provides: HENRIOD, Justice: (Concurring) . concur both with Mr. Justice Ellett and Mr. Justice Callistrr, and particularly with respect to Tie Constitutional provision mentioned (Sec. 9, Art. VI), whose most recent amendment, which now establishes the limit of compensation, was embodied in Senate Joint Resolution No. 8, Laws 1967, p. 627, adopted by the electorate November 5, 1968, effective January 1, 1969 (See 1969 Pocket Supp. p. 56, Vol. I, Utah Code Annotated 1953). I has a d.Vs Since tne Legislative Council is an office of profit, no member thereof is eligible to be a legislator; but since all members of the Council are to be selected from membership in the House and Senate, they become ineligible to be legislators as soon as they accept their appointment to the Council, and thus they will make themselves ineligible to serve on the Council. term for which v It- - this section, be considered offices . Consult utior. and expend.t jt es of the s wt, -- . re'-erue- No peTsor. holding any public office of profit or trust under authority of the United States, or of this State; shall be a member of the Legislature: Provided, That appointments in the State Militia, and the offices of notary public, justice of the peace, United States commissioner, and postmaster of the fourth class, shall not, within the meaning of No member of the Legislature, during the term for which was elected, shall be appointed or elected to any civil office of profit under this State, which shall have been created, or the emoluments of which shall have been increase during the term for which he was elected. - h'igates V. c f h c Co s' Sect.cn 7 of A ". c;i. i .. p1 .hi ti ns legislate rs from being appo r.ed c- in'. d e c. ... otf..es of prof. created, etc., during Th s matle .s not rendered mcot by the tetm for which hev a:i reason of the fact that a... munbers cf the Hoj&e ard perhaps seme members of the Senate hat beer. e.ec'Kl sir.i.e 'he enactment of he statute in question. However, there is another section of the Constitution which must be considered. Article VI, Section 6, reads: he This section clearly prevents any member of the Legislature during he was elected from being appointed or elected to any of office civil profit the emoluments of which were increased during the term for which he was elected. This provision was wisely inserted to cause members of the Legislature to look to the welfare of the state rather than to their own advantages and to give an assurance to their constituency that the legislators are not having their judgment on the merits of any bill improperly influenced by any desire for personal gain. It thus seems clear tha 'he defendants s t precluded from ber'rg . appointed to hc Leg.s.e.-- e Cc.ir. !1 . r mnih : sv phcrs.r corsi.tutes a 7 Qf ciil office ef prcf w.'l.r the- mcsr - go A:'' f V, ojr program. 'ho' memet st c:f ce- ard s.r prc:. ,. d - e bvjc.i' . r e - statutes and pcvioasly the .eglsie'. e and jud.ciai departments of dev.s.'-mears cl erforeing the law. ms h. i cj- - ,a function ass. gT ed FILED v. t.o: r. w. s t f g. s Law Dj. cf state. ooOoo k the es a .eg.eie-- state goverrmcr IN THE SUPREME COURT m reccmmtrds . me rimer's tere'o. Ellett, Justice in examiis b. Tuckett, Justice H concurs a. It ass.s's 'he legislative of government by collecting infer ma.. or con.-- r .'rg the government and general welfare of the state . Justice , e. BJac rules and regulations own or. a-- Callister, Jr. R R. L the take testimony. n 6. The Count possesses gcv c r r mi. r al powers as set out in Sec. 2 of Chapter 67, Laws rf Utah 1947, wlj.'h in subsfarce aTe as follows: WE CONCUR: , MONDAY, MAY 18, 1970 D attendance ol COURT DECISIONS (Continued from Page 3) CROCKETT, C. J. RECOR e tenure, to wi, until the cotAerwig of the next the Legislature following their appo.ntniei t, 3. The du'ies of fhe Council are se forth by the Legislature. 4. It is giver power to administer oaths, issue subpoenas, compel t |