Weital and Damarlane v. Leben

Inasmuch as the enabling act D.L. 4L-39-76 does not provide that the Legislature's Manual of Administration shall have the force and effect of law, it follows that save in the case of the Manual's statutory provisions and any Rules of Procedure contained therein which have been made to have the force and effect of statute by law, the contents of the Manual do not have the status of a statute.

[3 PN.L.R. 344]

32. Statutes - Construction

A statute is open to construction only where the language used therein requires interpretation or may reasonably be considered ambiguous.

33. Statutes - Construction - Legislative Intent

Where no ambiguity appears, it has been presumed conclusively that the clear and explicit terms of a statute express the legislative intention.

34. Statutes - Construction

A plain and unambiguous statute is to be applied, and not interpreted, since such statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity.

35. Statutes - Construction - Legislative Intent

The instrument by which the Legislature speaks its will is the statute itself, accordingly in the construction of statutes it is the legislative intent manifested in the statute that is of importance and such intent must primarily be determined from the language of the statute.

36. Statutes - Construction - Legislative Intent

The Court may not speculate as to the probable intent of the legislature apart from the words of the statute. For that reason a statute is to be taken, construed and applied in the form enacted.

37. Statutes - Construction

A statute is ambiguous where the language used is doubtful, has double meaning, is indistinct or uncertain in meaning.

38. Statutes - Construction

Uncertainty as to the meaning of a statute may arise from the fact that giving a literal interpretation to the words would lead to such unreasonable, unjust, impracticable, or absurd consequences as to compel a conviction that they could not have been intended by the legislature.

[3 PN.L.R. 345]

39. Statutes - Construction - Legislative Intent

In finding the legislative intent the safest starting point is the statute itself, but it is by no means the safest stopping point.

40. Statutes - Construction - Aids to Construction

Before the true meaning of the statute can be determined consideration must be given to the problem in society to which the legislature addressed itself, prior legislative consideration of the problem, the legislative history of the statute under litigation, and the operation and administration of the statute prior tolitigation. (Sutherland Statutory Construction, 3rd, Ed., Section 4505)

41. Statutes - Construction - Aids to Construction

Statutory construction is a fact issue, therefore, where available, the court should never exclude relevant evidence on that issue of fact. (Sutherland Statutory Construction, 3rd. Ed., Section 4502.)

42. Statutes - Construction - Aids to Construction - Legislative Intent

The legislative intent can be discovered only by factual inquiry into the history of the enactment of the statute, the background circumstances which brought the problem before the legislature, the legislative committee reports, the statements of the committee chairman and the course of the enactment. (Sutherland Statutory Construction, 3rd Ed., Section 4506)

43. Statutes - Construction

In construing a statute, the words of the particular provision are to be interpreted in the light of the statute as a whole and the courts may not by construction insert or supply a case omitted, or contingency for which no provision is made, thereby giving force and effect to the language of the statute when applied to a subject about which nothing whatever is said and to all appearances was not in the minds of the legislature at the time of the enactment of the statute.

[3 PN.L.R. 346]

44. Statutes - Construction - Courts - Duty

The duty of the court when construing a statute is to apply the law objectively as found and not to revise the statute by insertions or omissions in its provisions.

45. Statutes - Construction - Legislative Intent

The true legislative intent on budgetary general appropriations cannot be determined without regard to the back ground circumstances relating to the budget and the committee reports thereon.

46. Statutes - Construction - Aids to Construction

Use may be made by the courts of aids to the construction of the meaning of words used in a statute even where, on superficial examination, the meaning of the words seems clear. Thus to arrive at the true meaning and purpose of Section 4-7 of S.L. 1 L-74-86 (the Comprehensive Budget Act of 1986) reference may be made to Standing Finance Committee Report No. 20 of April 5, 1986, with reference tp the bill for the act.

47. Evidence - Presumptions

Where a Committee Report of the Legislature is in issue and no evidence is led to show that the Committee's recommendations were rejected by the Legislature, the Court would presume that the Legislature accepted those recommendations.

48. Statutes - Construction - Aids to Construction - Legislature's Intent

The mere failure to include in legislative form the recommendations of a Committee of the Legislature as adopted by the Legislature does not deprive those recommendations of their effect in discovering the Legislature's intent in enacting the Comprehensive Budget Act of 1986.

49. Courts - Powers

The Court may in its discretion address matters pertinent to a litigation but which were not raised by the parties if it is to do justice

[3 PN.L.R. 347]

according to law.

50. Statutes - Construction - Legislature's Manual of Administration

Laws to be incorporated into the Legislature's Manual of Administration under Section 1-5 (B) (2) of D.L.4L- 39-76 includes relevant laws in force at the time of the compilation of the Manual and all laws that are enacted from time to time pertaining to the management and administration of the Legislature staff.

51. Statutes - Budgetary Statutes - Incorporation Into Legislature's Manual of Administration

Budgetary statutes, including general appropriation statutes, pertain to the management and administration of the governmental branches and departments to which they relate, therefore in accordance with the provisions of section 1-5 (B) (2) of D.L. 4L-39-76, the Comprehensive Budget Act of 1986 shall be incorporated in the Legislature's Manual of Administration, and thus the Manual and the Act shall be read to gather.

52. Statutes - Construction - Legislature's Manual of Administration Speaker of Legislature - Administrative Responsibilities

By the Legislature's Manual of Administration the Speaker, as Chief Executive of the Legislature, has the ultimate responsibility for the management and administration of the Legislature staff. It is his duty to implement or cause to be implemented any law, resolution or directive pertaining to the management and administration of the staff (including their remuneration.) Thus it is his mandatory duty to implement or cause to be implemented any pay raises awarded by the Legislature to employees of the Legislature, where the duty is merely ministerial and does not call for the exercise of his judgment or discretion.

Counsel for Plaintiffs: Roberta Lindberg, Esq.

Micronesian Legal Services Corporation

Kolonia, Pohnpei 96941

[3 PN.L.R. 348]

Counsel for Defendant: Daniel J. Berman, Esq.

Kolonia, Pohnpei 96941

YOSTER CARL, Associate Justice

A. Introduction

This case came on for hearing by me on January 13, 1989. The plaintiffs were represented by Roberta J. Lindberg, Esq., of the Micronesian Legal Services Corporation, and the defendant was represented by Daniel J. Berman, Esq., having been represented at various times earlier by James Hagerstrom, Esq. and Fred Ramp, Esq. In order that I may pass properly upon the main issue and the other issues raised by the parties in this case it is necessary to make a comprehensive statement of the material facts of this case and in doing so, I must of course interpret the evidence as strongly as is reasonably possible in support of the judgment.

B. Facts of the Case

The plaintiffs instituted this action on March 26, 1987, for a declaratory judgment that the Speaker of the Pohnpei State Legislature, formerly Ambros Senda and now Annes Leben, has a

[3 PN.L.R. 349]

duty pursuant to S.L. 1L-74-86, the Pohnpei Legislature Rules of Order and the Legislature's Manual of Administration to cause a resolution to be prepared for submission to the Legislature for the implementation of a pay raise mandated for the benefit of the plaintiffs by that statute.

The plaintiffs claim that their title to the increased salaries is based on the Legislature's Committee on Finance Report No. 20 in reference to the bill which was passed as S.L. No. 1L-74-86, which report placed them on certain enhanced levels of pay.

The defendant contends that the Report of the Committee was only a recommendation, and denies that he has any legal duty to have a resolution prepared for submission to the Legislature for the purpose of implementing the increases. He requested the Court to dismiss the application for a declaratory judgment on the grounds that the plaintiffs had not exhausted their administrative remedy, that the plaintiffs are seeking an advisory opinion, and that under the doctrine of separation of powers, the judicial branch of government should not put itself in the position to issue a declaratory judgment defining the rights of the plaintiffs, as such a

[3 PN.L.R. 350]

judgment, were it to be given, would then proceed to some compelling order, mandamus in nature, and would be a blatant violation of the doctrine of separation of powers. The defendant accordingly brought a motion to dismiss which I denied.

After a lapse of time and before the case could be heard on its merits counsel for the parties filed a Settlement Agreement dated April 14, 1988, by which the plaintiffs agreed to dismiss the action upon the payment by the defendant of the back salaries in specified amounts by certain dates. The defendant appears to have repudiated this agreement and the plaintiffs do not seem to be enforcing it. I shall therefore say no more about it.

Notwithstanding the said agreement, the defendant filed a motion on July 6,1988, asking the Court to dismiss the case on the ground that he had done what the plaintiffs wanted, namely the introduction of the resolution required to implement S.L. 1L-74-86 which they alleged awarded them the pay increases, and that there was no longer any controversy between the parties to be resolved by the Court. He said the question was moot.

At this turn of the case the plaintiffs on July 14, 1988, filed a

[3 PN.L.R. 351]

motion opposing the defendant's motion to dismiss, and for leave to file an Amended and Supplemental Complaint. They contended that not until they had received the pay raise they were seeking the controversy was not moot.

On July 29,1988, this Court denied the defendant's motion to dismiss, and granted the plaintiffs' motion opposing dismissal and for leave to file an Amended and Supplemental Complaint.

The plaintiffs' Amended and Supplemental Complaint allege among other things that:

"9. On April 5, 1986, the Pohnpei Legislature Committee on Finance submitted its Standing Committee Report No. 20 in reference to the bill referred to in paragraph 6 above.

10. The Legislature adopted the bill referred to in paragraph 6 above in the form recommended by its Committee on Finance.

11. When the bill referred to in paragraph 6 above became law, it was designated S.L. 1L-74-86.

12. S.L. 1L-74-86 authorized for expenditure and appropriated funds for the operation of the Division of Legislative Counsel of the Office of the Legislature.

[3 PN.L.R. 352]

13. S.L. No. 1L-74-86 authorized for expenditure and appropriated funds to provide for an increase of six pay levels for each of the plaintiffs, beginning with the start of the fourth quarter of fiscal year 1986 (July 1, 1986).

14. The Committee on Finance report referred to in paragraph 9 above specified that plaintiff WEITAL be placed on step 3 of pay level 19, and that plaintiff DAMARLANE also be placed on Step 3 of pay level 19. Pay levels are determined in accordance with the Pohnpei Government Salary Conversion Act of 1985, S.L. No. 1L-71-86, section 2-1.

15. Defendant ANNES LEBEN, as Speaker of the Pohnpei Legislature, is responsible for the functioning of the Legislative staff, including the Division of the Legislative Counsel where plaintiff WEITAL is employed and where plaintiff DAMARLANE was employed.

16. As Speaker of the Legislature, Defendant LEBEN has a legal duty pursuant to S.L 1L-74-86 to implement the pay increases for plaintiffs beginning July 1, 1986.

17. Defendant LEBEN has failed and refused to implement

[3 PN.L.R. 353]

the pay increase for plaintiffs beginning July 1,1986.

18. Plaintiffs have not received the salary increases to which they were entitled as of July 1, 1986, and therefore have been damaged by defendant LEBEN's failure to perform his legal duty.

19. In April, 1988, the Pohnpei Legislature authorized and appropriated funds forthe purpose of settling this lawsuit by paying the plaintiffs the back wages to which they are entitled.

20. Plaintiffs are entitled to judgment declaring that defendant LEBEN has a legal duty to implement the pay raise for plaintiffs beginning July 1, 1986.

WHEREFORE, plaintiffs pray for an order:

1. Declaring their rights as set forth in this complaint;

2. Declaring defendant's duties as set forth in this complaint;

3. Ordering such further relief as the Court may deem just and equitable."

Following the filing of the Amended and Supplemental Complaint the plaintiffs filed on September 1, 1988, a motion for summary judgment declaring that the defendant has a legal duty,

[3 PN.L.R. 354]

pursuant to S.L. 1L-74-86 to increase the pay of plaintiff Weital to $526.30 bi-weekly and to pay plaintiffs' back, pay as follows:

1. To Damarlane, the sum of $2,436.68, and

2. To Weital, the sum of $9,802.75 through September 2, 1988. The plaintiffs' argument in support of this motion is that there is no genuine issue as to material fact as the facts of the case, which are in most instances matters of public record, have not changed, except the amounts of back pay sought by the plaintiffs. These amounts were computed by comparing the amounts each plaintiff actually received with the amounts each would have received had the pay raises they seek been implemented on July 1, 1986.

This method of computation was accepted by the defendant when the settlement agreement dated April 14, 1988, was prepared. In this connection, the plaintiffs further argue that they are entitled to judgment as a matter of law. They seekto enforce a pay raise which they believe is required by the 1986 Budget Act. They aver that the statute itself authorizes and appropriates funds for governmental functions. Section 4-7(1) provides the sum of $126,800 for not more than 11 personnel in the Division of

[3 PN.L.R. 355]

Legislative Counsel of the Office of the Legislature. They go on to say, that "Examined in isolation, the statute itself does not indicate how the $126,800 figure was arrived at, or what it is intended to be used for, other than personnel cost," but section 47 of Standing Committee Report No. 20 dated April 5, 1986, which is central to this case shows the clear intent of the Legislature to provide the necessary funds to raise the pay of the plaintiffs. What this Report contains appears at a later point in this Opinion.

However, the plaintiffs say that in the Report they are identified by name and the report indicates the exact pay level and step each of them should be assigned. The Legislature after considering this report adopted the 1986 Budget Act in exactly the form recommended by the Finance Committee without any changes at all in the language and amounts. They submit that any doubt whatsoever, if any, as to the Legislature's intention concerning the pay level of the plaintiffs was removed when the Legislature adopted the 1988 Budget Act, 2L-5-88, as Section 4-7 (5) of that Act includes a provision for $45,000 for "All Others," a sum out of which according to Standing Committee Report No. 22, $25,000 is allocated to "court settlement costs." They further submit that what

[3 PN.L.R. 356]

the Legislature required in 1986 had now been reaffirmed in 1988, that is they should receive a raise in pay to eliminate a disparity in their compensation. They thus urge the Court to enter summary judgment in their favor.

The defendant in his answer to the plaintiffs' first Amended and Supplemental Complaint denies;

(1) that this Court has jurisdiction over this case under the Pohnpei State Constitution, Article 10, Section 4, and the Pohnpei Judiciary Act, 2L-160-82, Section 20, as amended by 3L-6-84, Section 1;

(2) that this Court has jurisdiction to enter a declaratory judgment, pursuant to the Pohnpei State Judiciary Act, 2L-160-82, Section 22;

(3) that S.L. 1L-74-86 authorized for expenditure and appropriated funds to provide for an increase of six pay levels for each of the plaintiffs, beginning with the start of the fourth quarter of fiscal year 1986 (July 1, 1986);

(4) that the Committee on Finance report referred to in paragraph 9 of the plaintiffs' first amended and supplemental complaint specified that plaintiff Weital

[3 PN.L.R. 357]

be placed on step 3 of pay level 19, and that plaintiff Damarlane also be placed on step 3 of pay level 19 in accordance with the Pohnpei Government Salary Conversion Act of 1985, S.L. 1 L-71-86, Section 2-1;

(5) that as speaker of the Legislature, defendant Leben has a legal duty pursuant to S.L. 1L-74-86 to implement the pay increase for plaintiffs beginning July 1, 1986;

(6) that defendant Leben has failed and refused to implement the pay increase forthe plaintiffs beginning July 1, 1986;

(7) that the plaintiffs have not received the salary increases to which they were entitled as of July 1, 1986, and therefore have been damaged by defendant Leben's failure to perform his legal duty;

(8) that in April, 1988, the Pohnpei Legislature authorized and appropriated funds for the purpose of settling this lawsuit by paying the plaintiffs the back wages to which they are entitled; and

(9) that the plaintiffs are entitled to judgment declaring

[3 PN.L.R. 358]

that defendant Leben has a legal duty to implement the pay raise for the plaintiffs beginning July 1, 1986.

The defendant, further, puts up the following affirmative defenses:

(1) that the plaintiffs fail to state a claim upon which relief may be granted;

(2) that the Court is without jurisdiction in matters of political questions; and

(3) that the Court is without jurisdiction in matters that are moot for which there is no case or controversy.

Then, on December 23, 1988, the defendant filed a motion in reply to the plaintiffs' motion for summary judgment and a cross motion for summary judgment. In his motion in reply he requested the Court to deny the plaintiffs' motion, contending that S.L.1 L-7486, standing alone, imposes no legal duty on the defendant to increase the pay of plaintiff Weital and to provide back pay to the plaintiffs, and that the plaintiffs' request for Declaratory Judgment against the defendant that he has a legal duty to implement pay raises forthe plaintiffs will afford no real remedy to the plaintiffs and

[3 PN.L.R. 359]

is merely an effort to avoid the legal principle of separation of powers between the branches of government as set forth in People of Kapingamarangi v. Pohnpei Legislature, PCA No. 188-85 (Pon. Tr.Div.2/4/85). And in his cross-motion for summary judgment, the defendant urges the Court pursuant to Rule 5 (c) of the Pohnpei Rules of Civil Procedure to grant an order declaring that the defendant has no duty, legal or otherwise, to increase the pay of plaintiff Weital or to pay plaintiff Damarlane for any alleged increases from their assigned grade levels.

The defendant argues that no statute or resolution has been adopted by the Legislature that overrides, repeals or modifies D.L. 4L-39-76, establishing the Manual of Administration that is the exclusive governing authority over the employees of the Pohnpei Legislature, and that the 1986 Budget Act, S.L. 1L-74-86, imposes no legal duty on the defendant to increase the pay of, or provide back pay to the plaintiffs as it is silent on this point. Further, the Act is silent regarding changes in the Manual of Administration, therefore the Act is absolutely no authority for a duty of the Legislature "to pay" the plaintiffs. The defendant thus asserts that the Budget Act of 1986 appropriation falls far short of legislative intent to

[3 PN.L.R. 360]

mandate a large increase in grade and pay to the aides. He maintains that if the Court needs to lookfurther because the Budget Act is vague, then it could look at SCREP No. 20 for guidance in understanding the Budget Act. However, since no reference or discussion of the legislative aides' pay and grade levels ever exists in the statute, there is no need to look at the Committee Report, which is mere surplusage. He goes on to say that the Committee report is only a secondary authority that does not have the force and effect of law and that it only recommends a change in the aides. compensation and is no authority for "duty" on the Legislature "to pay" because the Committee is only a part of the Legislature and its report is only the opinion of a part of the elected body. The defendant, further, argues that since the actual bill (referring to S. L, 1L-74-86), did not repeat the recommendations of the Committee, and the bill never changed the aides' position or salary classification, the intent of the 1986 Budget legislation taken together is nothing more than to provide the Legislative Counsel Division with operating funds for them to distribute in their discretion in accordance with their existing law. And given that the aides could not obtain even the approval of their immediate supervisor or Speaker

[3 PN.L.R. 361]

of higher grades and pay, the plaintiffs cannot enforce any rights based on a Committee Report's "recommendations".

On the other hand the plaintiffs argue that the Committee Report provides clear and unequivocal (and uncontradicted) evidence of the Legislature's intent in appropriating a specific amount of funds for the Legislative Counsel Division's personnel account.

C. The Issues and Conclusions of Law

The issues, as I see them, for determination in this case are:

(1) whether the Pohnpei Supreme Court may enter a Declaratory Judgment against the Pohnpei Legislature in a case in which the Legislature is the defendant;

(2) whether the doctrine of separation of powers precludes the Pohnpei Supreme Court from hearing a case in which relief is sought against the Pohnpei Legislature or its official;

(3) whether the Pohnpei Legislature's Manual of Administration has any legal status, and if so what status;

(4) whether upon proper interpretation of the State Comprehensive Budget Act of 1986, S.L. 1L-74-86, the plaintiffs are

[3 PN.L.R. 362]

entitled to any pay raise; and

(5) whether the Speaker of the Pohnpei Legislature has a duty to implement pay raises allegedly granted to the plaintiffs under S.L. 1L-74-86.

[1] I now address these issues one by one having regard to the submissions of the parties. As has been the practice of this Court I shall, in the absence of a Pohnpei law, look to other jurisdictions for guidance on any rule of law where the nature of this case requires.

(1) Declaratory Judgment

The plaintiffs in this action seek relief in the nature of a Declaratory Judgment. But the defendant contends that granting their request would in reality not afford the plaintiffs all the relief they seek and would need to file a subsequent suit in order to receive the money they believe they are owed. To use the defendant's words "It is at this juncture that the time honored doctrine of separation of powers between the branches [of government] will come into play. This is true because the plaintiffs will necessarily be seeking an order of this Court which will permit

[3 PN.L.R. 363]

them to reach into and interfere with the inner political workings of the Pohnpei Legislature." The defendant took the liberty to remind this Court that it has in the past been very sensitive and alert to avoid political entanglement with the Legislature when this Court ruled against its authority to enter an Order of Mandamus against the Pohnpei Legislature in the case of People of Kapingamarangi v. Pohnpei Legislature PCA 188-85 (Pon. Tr. Div. 2/4/88). This position is, of course, challenged by the plaintiff.

[2] The Court finds no difficulty with the relief sought by the plaintiffs. The Pohnpei Judiciary Act of 1982, S.L. 2L-160-82, as amended empowers this Court to grant reliefs in the form of declaratory judgments. The statute provides in pertinent part:

In a case of actual controversy within its jurisdiction, any court of this State, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. (emphasis added).

[3 PN.L.R. 364]

[3] Further, I agree with the plaintiffs that the law as it stands makes a second law suit unnecessary in the event that they are successful, and that where the defendant in a case refuses to abide by the Court's ruling the plaintiffs will have the right to seek mandatory relief based on the declaratory judgment after reasonable notice and hearing. In my opinion, therefore, this Court may grant a declaratory judgment in this case, a case of actual controversy, declaring the legal and other relations of the plaintiffs whether or not further relief is or could be sought by the plaintiffs.

(2) The Doctrine of Separation of Powers

[4] I have already noted that the defendant does not want this Court to grant the relief of declaratory judgment sought by the plaintiffs in this action because, he alleges, by granting that relief the Court would be drawn into a possible confrontation with the Legislative Branch of the Pohnpei Government. I cannot let it go without comment that the position taken by the defendant is rather unfortunate, threatening and intimidating as it appears, and portends to grave danger for the proper functioning of the three branches of government as envisioned by the framers of our

[3 PN.L.R. 365]

Pohnpei Constitution. If the defendant's submissions were meant to deter this Court from entertaining actions of this nature, I must say, without reservations, that this Court cannot shirk, and cannot be influenced by any means be they threats or promises to abandon, its constitutional duty to exercise according to law the judicial power vested in it by Article 10, Section 1, of the Pohnpei Constitution.

[5-7] It has long been established that under the theory of separation of powers of government, legislative, executive and judicial powers of each branch must be preserved to it. Wilson v. School Dist., 113 ALR 1401. It is one of the fundamental principles of government thatthe legislative and judicial powers shall be separate. People ex rel. Leaf v. Orvis, 132 ALR 1382. The separation of the legislative, executive and judicial powers, the independence of one from the other, and the requirement that one department shall not exercise or encroach upon the powers of the others is fundamental in our (U.S. Federal and State) government, State of West Virginia v. Huber 168 ALR 808, People of Kapingamarangi v. Pohnpei State Legislature, PCA 188-85 (Poh. Tr. Div. 2/4/85).

[8] Under the constitutional division of government powers, the

[3 PN.L.R. 366]

executive cannot exercise judicial or legislative power, the judiciary cannot be clothed with executive or legislative power, and the legislature cannot exercise the functions of the executive or judicial department. Langever v. Miller, 96 ALR 836, and officers of any branch of the government may not usurp or exercise the powers of either of the others. State ex rel DuFresne v. Leslie, 50 P. 2d 959. [9] "Indeed the doctrine of separation of powers and the independence of each branch to carry out its constitutional functions carries with it a responsibility of each branch to cooperate with the other branches to accomplish the purpose of each constitutional provision; and each branch in exercising its prerogatives and authority, must have regard for the prerogatives and authority of the others. For any one of the three equal and co-ordinate branches of government to police or supervise the operations of the others strikes at the very heart and core of the entire structure.

[10-11] "The completeness of the separation of the three departments and their mutual independence does not extend to the point that those in authority in one department can ignore and treat the acts of those in authority in another department, done pursuant to

[3 PN.L.R. 367]

the authority vested in them, as nugatory and not binding on every department of the State government, since each department is to a limited extent affected by the action of the other departments. Such limited control overthe other departments is illustrated by the power of the legislative department to enact laws by which both the other departments are controlled and bound. The chief executive has a qualified veto power upon legislative action, and has the right to convene the legislature when he chooses. He may also practically annul the judgments of the judiciary in certain cases, by the.exercise of the pardoning power." (16 Am Jur2d- Constitutional Law, Section 298)

[2-14] The true meaning of the doctrine of separation of powers seems to be that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the departments, and that no one department ought to possess directly or indirectly an overriding influence over the others. And it has been held that this doctrine should be applied only to the powers which because of their nature are assigned by the constitution itself to one of the departments exclusively. Hence, it doe$ not necessarily follow that an entire and complete separa-

[3 PN.L.R. 368]

tion is either desirable or was intended, for such a complete separation would be impracticable if not impossible, there may be - and frequently are - areas in which executive, legislative, and judicial powers blend or overlap; and many officers whose duties cannot be exclusively placed under any one of these heads. (emphasis added)

[95-16] "[T]he modern view of separation of powers rejects the metaphysical abstractions and reverts instead to a more pragmatic, flexible, and functional approach1, giving recognition to the fact that there may be a certain degree of blending or admixture of the three powers of government.2 Moreover, the doctrine of separation of powers has never been strictly or rigidly applied, and indeed could not be, to all the ramifications of state or national government;3 government would prove abortive if it were attempted to follow the policy of separation to the letter. (16 Am Jur 2d, Constitutional Law, Section 299)

[17-19] Thus in the United States from which we derive the notion of separation of powers of government, in all of the State constitu-

[3 PN.L.R. 369]

tions, though the legislative, judicial and executive functions are vested in different departments, one department may perform acts which, in substance, are of the character of another, yet this may be done only when coupled with its own paramount power and in use of some discretion essential to its existence. Watkins v. Lessee of Holman, 41 U.S. 25, 10 L. Ed 873. This is what has led to what has been referred to as "the blending of powers of government". In other words, the line of demarcation between the various departments of government is not distinct and cannot be clearly and distinctly drawn. Nor can the various departments of government operate entirely distinct from and without connection or dependence upon each other. There are certain powers of government which undoubtedly belong to certain of the departments provided by the constitution, such as the right to grant pardons or veto the act of the Legislature, which belongs to the executive department; the right to make laws, which belongs to the legislative; and the right to construe laws and adjust controversies between citizens, which belongs to the judicial department. There are many other powers which may properly be assigned to one or the other of two departments. People v. Kelly 80 ALR 890.

[3 PN.L.R. 370]

[20-21] It follows from this principle of separation of powers of government that this Court cannot encroach upon the legislative functions of the Legislature. See Federal Radio Commission v. Nelson Brothers Bond Mortgage Co. 289 U.S. 266, 275, Greenwood Cemetery Land Co., v. Routt 28 P 1125, Fergus v. Marks 46 ALR 960. Nor can this Court hazard any ruling upon questions which are exclusively or predominantly political in nature rather than judicial, whether or not they relate to the internal or external affairs of the Legislature. Joint Anti-Fascist Refugee Committee v. McGrath 341 U. S.123. Neither can this Court control an action of the Legislature with respect to duties involving the exercise of discretion. State ex rel. Whitehead v. Gage 377 P 2d 299.

[2-23] Notwithstanding these limitations on the functions of the Court it is generally considered a judicial function not interfering with the prerogative of the legislature to determine whether a statute enacted by the legislature is constitutionally valid, in other words to engage in what is usually referred to as judicial review of legislation. In deciding the constitutionality of legislation, the courts are discharging their habitual function of determining the appli-

[3 PN.L.R. 371]

cable law and do not invade the legislative field or usurp a nonjudicial function. In Re Petition of Idaho State Federation of Labor 272 P 2d 707; see also Bowe v. Secretary of Commonwealth of Massachusetts 167 ALR 1447.

[24] This Court will not hazard to do what it is constrained by the doctrine of separation of powers from doing. However, the doctrine of separation of powers does not provide a shield protecting the legislative branch and its officers from judicial process where the duties to be performed are of a mere ministerial character. State ex re/. Donnell v. Osburn 136 ALR 667.

[25] Accordingly the courts frequently enforce by mandamus ministerial duties not involving the exercise of discretion which rest on legislative officers, including presiding officers. See Annotation: 136 ALR 667. I do not think this Court should be an exception in following this principle. In my view, therefore, the hearing and determination of this case does not violate the doctrine of separation of powers of government and does not bring the judicial branch of the Pohnpei State Government into any conflict with the legislative branch as contended by the defendant. It should be noted that

[3 PN.L.R. 372]

this action is not one against the Legislature requiring that body to discharge any legislative functions. It is against the Speaker, an officer of the Legislature, to perform a duty. The plaintiffs have standing before the Court but whether or not they are entitled to the relief they seek is an entirely separate question to be determined.

(3) The Legislature Manual of Administration

Before addressing the arguments of the parties in this connection I think it is important to find out what the Legislature Manual of Administration is and the purpose it serves.

District Law No. 4L-39-76, Section 1-5, which establishes the Legislature Manual of Administration provides that it shall incorporate all provisions for the administration and management of the Legislature staff. The Manual shall be adopted by Resolution and it shall provide the means for disseminating in an orderly fashion, instructions from the Legislature relative to the management and administration of such staff, its organization, delegations of authority, policies and certain procedures and general and continuous application affecting the day-to-day administrative operations of the staff.

[3 PN.L.R. 373]

As to what shall be included in the Manual, Section 1-5 (B)(2) of the statute provides:

"All laws, resolutions, Rules of Procedure and other directives of the Legislature pertaining to the management and administration of the Legislature staff shall be incorporated into the Manual. The members of the staff shall submit to the Speaker of the Legislature, their recommendations relating to the organization, delegation of authority, or changes in basic policy in the Manual. The Speaker shall review and present such recommendations to the Legislature for their adoption and incorporation in the Manual; PROVIDED, HOWEVER, that if the Legislature is not in session, the Speaker shall submit such approved recommendations to the Judiciary and Governmental Relations Committee which shall have the power to approve such recommendations for incorporation in the Manual, subject to appeal to the Legislature by any Legislator."

The parties in this case are agreed that the Legislature's Manual of Administration does not authorize the pay raises the plaintiffs are seeking but they disagree as to the legal status of the Manual. The defendant argues that the Manual is established by statute and adopted by resolution directly underthe authority of the Pohnpei Constitution and Rules of Order, and is not a regulation,

[3 PN.L.R. 374]

and has the full force and effect of statutory law, but the plaintiffs assert thatthough D.L. 4L-39-76 provides forthe Manual it does not adopt the contents and that the fact that D.L. 4L-39-76 authorized the Manual does not and cannot give its contents the status of a statute. The plaintiffs also contend, and I think rightly so, that the constitutionally accepted procedure for adopting statutes is set out in Article 8, Sections 12 through 14 ofthe Pohnpei Constitution, and that the Manual was not adopted according to that procedure therefore it cannot have the force and effect of a statute.

[27] I need not elaborate on the statute-making procedure under the Pohnpei Constitution but suffice it to say that a statute begins as a bill which shall pass two readings on separate days to become law. The second reading requires the affirmative vote of a majority of the members of the Legislature without regard to vacancies. (Section 12) Every bill that has passed the Legislature shall be certified by the presiding officer and the Clerk and presented to the Governor for his approval or otherwise. (Section 13)

[28-29] The evidence clearly shows that the Legislature's Manual of Administration did not go through the constitutional procedure

[3 PN.L.R. 375]

for the enactment of statutes for its adoption. Indeed it was adopted only by a resolution of the Legislature. Assuming then that the contents of the Manual are drawn only from sources other than statutory sources, the Manual cannot have the same status as a statute passed in accordance with the mandates of the Constitution. In my opinion in the event the Manual's contents are nonstatutory, that it to say not derived from statute, then the Manual will be in the nature of administrative regulations having been made pursuant to an enabling statute and adopted by resolution of the Legislature. The Legislature resolution does not clothe the Manual with status of a statute as resolutions are not the constitutional mode by which statutes are enacted.

[30-31] It is significant in this regard to observe that the Manual's contents pursuant to Section 1-5 (B) (2) of D.L. 4L-39-76 may include laws, resolutions, Rules of Procedure and other directives of the Legislature pertaining to the management and administration of the Legislature staff. Thus a unique situation is created whereby some of its provisions may be categorized as statutory whereas others may not be so categorized. This admixture of

[3 PN.L.R. 376]

statutory with non-statutory provisions in the Manual does not give the entire Manual the status of a statute. For the non-statutory provisions to have the force and effect of statute, statute must not only authorize their making but also give those provisions that effect as is usual with administrative regulations. Nothing in D.L. 4L-39-76 shows that the Manual shall have the force and effect of law. It follows, therefore, that save in the case of its statutory provisions and any Rules of Procedure contained therein which have been made to have the force and effect of statute by law, the contents of the Legislature's Manual of Administration do not have the status of a statute. Another way of putting it is that it is the statutes or rules having such force in themselves that have the force and effect of law and not those provisions as incorporated in the Manual which has no such status because the statute which authorizes the Manual does not give the Manual such force.

(4) Construction of the Comprehensive Budget Act of 1986, S.L. 1L-74-86, whether the Legislature's intent was to grant pay raises to the plaintiffs.

The parties to this case have taken diametrically opposite positions as to the Legislature's intent in enacting the Comprehen-

[3 PN.L.R. 377]

sive Budget Act of 1986, S.L. 1L-74-86. Whilst the plaintiffs claim that the Legislature's intent to be discovered from the Finance Committee Report relating to the Bill which was passed as S.L. 1L-74-86, was to grant pay raises to the plaintiffs when the Act appropriated the precise amount of funds needed by the Legislative Counsel Division of the Office of the Legislature to put into effect the pay raises, the defendant on the other hand denies this. This Court is therefore called upon to interpret the relevant provisions of the Act as to its true meaning.

The words used in making the appropriations for the Division are as follows:

"Section 1-7. Division of Legislative Counsel of the Office of the Legislature:

(1) Not more than 11 personnel $ 126,800

(2) All other accounts 48,750"

[32-34] A statute is open to construction only where the language used therein requires interpretation or may reasonably be considered ambiguous. Thus where no ambiguity appears, it has been presumed conclusively that the clear and explicit terms of a statute

[3 PN.L.R. 378]

express the legislative intention. U.S. v. American Trucking Associations Inc. et al 310 U. S. 534, Lane v. Department of Labor & Industries 151.P2d 440. A plain and unambiguous statute is to be applied, and not interpreted, since such statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity. Helvering v. N.Y. Trust Co. 292 U.S. 455

[35-36] The instrument by which the Legislature speaks its will is the statute itself, accordingly in the construction of statutes it is the legislative intent manifested in the statute that is of importance and such intent must primarily be determined from the language of the statute. The court may not speculate as to the probable intent of the legislature apart from the words. For that reason it has been declared that a statute is to be taken, construed and applied in the form enacted. McClain v. Commr of Internal Revenue 311 U.S. 527.

[37-38] How then does ambiguity occur in a statute? A statute is ambiguous where the language used is doubtful, has double meaning, is indistinct or uncertain in meaning. Roe v. Hoppes 408 P 2d 161. Uncertainty as to the meaning of a statute may arise from

[3 PN.L.R. 379]

the fact that giving a literal interpretation to the words would lead to such unreasonable, unjust, impracticable, or absurd consequences as to compel a conviction that they could not have been intended by the legislature. State by State Highway Com. v. Rawson 312 P 2d 849.

[34-41] In finding the legislative intent it has been said that the safest starting point is certainly the statute itself. But it is by no means the safest stopping point. Before the true meaning of the statute can be determined consideration must be given to the problem in society to which the legislature addressed itself, prior legislative consideration of the problem, the legislative history of the statute under litigation, and the operation and administration of the statute prior to litigation. Sutherland Statutory Construction Section 4505. Statutory interpretation is a fact issue, therefore where available, the courts should never exclude relevant evidence on that issue of fact. (See Sutherland, Section 4502 (Supra)).

[42-44] Thus the legislative intent can be discovered only by factual inquiry into the history of the enactment of the statute, the

[3 PN.L.R. 380]

background circumstances which brought the problem before the legislature, the legislative committee reports, the statements of the committee chairman and the course of the enactment. An honestly conducted inquiry into these considerations will, more often than not, disclose the purpose and intent of the legislature and will clarify the position whether or not the statute is applicable to the question in litigation. Sutherland, Section 4506 (Supra). The words of a particular provision of a statute are to be interpreted in the light of the statute as a whole and the courts may not by construction insert or supply a case omitted, or contingency for which no provision is made, thereby giving force and effect to the language of a statute when applied to a subject about which nothing whatever is said and to all appearances was not in the minds of the legislature at the time of the enactment of the statute. Bartron v. Codington County 140 ALR 550. The duty of the court is to apply the law objectively as found and notto revise it by insertions or omissions in its provisions.

I now look at the Comprehensive Budget Act of 1986, S. L.1 L74-86. Section 1-1 tells us that the act may be cited as the "Pohnpei Comprehensive Budget Act for Fiscal Year 1986" and may also be

[3 PN.L.R. 381]

referred to as the "General Appropriations Act for Fiscal Year 1986." The Act has no purpose section but its long title apart from stating that it provides for the comprehensive budget for the government of Pohnpei for the Fiscal Year 1986, also states that the Act appropriates monies therefor. It is in pursuance of this that the sums referred to earlier, namely $126,800 for not more than 11 personnel and $48,750 for all other accounts, were appropriated. [45-46] Looking at the statute in issue as it is, it may seem as if the words construed literally, are plain in meaning and devoid of ambiguity in that they appropriate sums of mbney for specified purposes. But I should not let that becloud my view in my search for a fair and true import and purpose of its provisions. It is clear from section 1-1 of the statute that the appropriations made are general appropriations. In my opinion, therefore, in order to know the true reason and purpose of those appropriations one needs to go beyond the general provisions of the statute in one's search. General appropriation statutes are not passed in vacuum. The Legislature's vigilance on the budgetary resources of a state requires that such statutes are enacted only after careful consid-

[3 PN.L.R. 382]

eration of the budgetary proposals and the appropriate committee reports thereon. Accordingly, I hold that the true legislative intent on budgetary general appropriations cannot be determined without regard to the background circumstances relating to the budget and the committee reports thereon. Use may be made by the courts of aids to the construction of the meaning of words used in a statute even where, on superficial examination, the meaning of the words seems clear U.S. v. American Trucking Association 310 U.S. 534. Thus to arrive at the true meaning and purpose of Section 4-7 of S.L. 1L-74-86 reference may be made to Standing Finance Committee Report No. 20 of April 5, 1986, with reference to the bill for the act. Section 47 of that Report reflects the legislative intent of the Pohnpei Legislature to wit:

"The sum provided in the "Personnel account" also reflects the enhanced salaries recommended for the Division for the Assistant Legislative Counsel, Budget Officer, and legislative aides and a new additional legislative aide. Your Committee recommends that the requested Budget Officer be converted to another legislative aide position. Your Committee sees some disparity in compensation of the legislative aides

[3 PN.L.R. 383]

and recommends that each position title be given one pay level while steps should reflect seniority of incumbents. Your Committee recommends that the Assistant Legislative Counsel position be placed on pay level 22 and the legislative aide position be placed on pay level 19. To reflect the seniority of the incumbents of the positions, your Committee recommends that ALC Biza and Legislative Aides Susaia, Weital, and Damarlane be placed on steps 8, 6, 3, and 3 of their assigned levels respectively. New aides should be placed on step 1 of their assigned pay level. Your Committee recommends that these conversions not be implemented until the beginning of fourth quarter of this fiscal year."

[47-48] The defendant argues that this is only a recommendation which the Legislature did not enact into a law. Before a law is enacted I believe in practice one of two things may happen to a Committee Report thereon: either the House accepts or rejects it. And its acceptance or rejection affects the law as enacted. In the instant case no evidence is led to show that the Committee's recommendations were rejected by the Legislature. I would therefore presume thatthe Legislature accepted those recommendations. As to the enactment of those recommendations into law I find that the Comprehensive Budget Act of 1986, S.L. 1L-74-86,

[3 PN.L.R. 384]

is enacted in accordance with a format that is regularly used in such enactments, i.e. without providing much detail as to what the general appropriations are intended for. For that reason the mere failure to include in legislative form the recommendations of the Committee as adopted by the Legislature does not deprive those recommendations of their effect in discovering the Legislature's intent in enacting S.L. 1L-74-86. The plaintiffs are, therefore, in consonance with S.L. 1L-74-86 as elaborated by Standing Finance Committee Report No. 20 of April 5,1986, entitled to the pay raises they seek.

[49] Further, though this was not raised by the parties, one other matter that needs to be addressed if this Court is to do justice according to law is the method of inclusion of provisions in the Legislature Manual of Administration. It is this that section 1-5 (B)

(2) of D.L. 4L-39-76 which provides for the Manual requires that:

"All Laws, Resolutions, Rules of Procedure and other directives of the Legislature pertaining to the management and administration of the Legislature staff shall be incorporated into the Manual. "(Emphasis added)

[50-51] Obviously the Laws referred to here were laws in force

[3 PN.L.R. 385]

at the time of the compilation of the Manual but I do not think it makes sense to limit the contents of the Manual to such Laws, hence I hold that "Laws" includes all laws pertaining to the management and administration of such staff that are enacted from time to time. I am convinced in my mind that budgetary statutes, including general appropriation statutes, pertain to the management and administration of the governmental branches and departments to which they relate. As such the provisions of S.L. 1L-74-86, the Pohnpei Comprehensive Budget Act for the Fiscal Year 1986 (otherwise referred to as the General Appropriations Act for the Fiscal Year 1986) as detailed in Standing Finance Committee Report No. 20 of April 5,1986, shall in accordance with D.L. 4L-3976, section 1-5 (b)(2) be incorporated in the Legislature Manual of Administration. This is a mandatory requirement. S.L. 1L-74-86 requires no compliance of this mandatory provision for its force and effect. The Legislature Manual of Administration shall therefore be read together with and as including S.L. 1L-74-76. On this basis too, the plaintiffs are entitled to the pay raise they seek.

(5) Duty of Speaker

[52] The Legislature Manual of Administration shows that the

[3 PN.L.R. 386]

Speaker, as Chief Executive of the Legislature, has the ultimate responsibility for the management and administration of the Legislature staff. It is his duty to implement orcause to be implemented any law, resolution or directive pertaining to the management and administration of the staff (including their remuneration.) It follows naturally, therefore, that it is his duty to implement or cause to be implemented the pay raises awarded to the plaintiffs pursuant to the Comprehensive Budget Act of 1986, S.L. 1L-74-86, appropriation for the Legislative Counsel Division of the Office of the Legislature as specifically detailed in the Standing Committee Report No. 20 of April 5, 1986. This duty of the Speaker is merely ministerial and does not call for the exercise of his judgment or discretion.

D. Judgment

Accordingly, it is ADJUDGED, ORDERED and DECREED that:

1. the Court has power to enter a declaratory judgment against the Speaker of the Pohnpei Legislature;

2. the Court is not precluded by the doctrine of separation of powers from determining the consti-

[3 PN.L.R. 387]

tutionality of legislation or legislative construction, nor does the doctrine provide a shield protecting the legislative branch and its officers from judicial process where the performance of their ministerial duties is in issue;

3. the Legislature Manual of Administration to the extent to which its provisions are not statutory is in the nature of administrative regulations with no force and effect of a statute;

4. on the proper construction of the Comprehensive Budget Act of 1986, S.L. 1L-74-86, the intent of the Legislature was to award pay raises to the plaintiffs as expressed in Standing Finance Committee Report No. 20 of April 5, 1986; and

5. the Speaker has a duty to implement the pay raises awarded to the plaintiffs pursuant to the Comprehensive Budget Act of 1986, S.L. 1L-74-86, in accordance with Standing Finance Committee Report No. 20 of April 5, 1986.

Footnotes:

1. Nixon v. Administrator of General Services, 408 F. Supp 321 (1976), affd.433 U.S. 425, 53 L Ed 2d 867, 97 S Ct 277.

2. Bailey v. State Board of Public Affairs et al., 153 P. 2d 235.

3. Bryant v. Akron Metropolitan Park District, 66 ALR 1460, 281 U.S. 74,74 L. Ed 710, 50 S.Ct 228