Walton, Mayor v. Donnelly , 83 Okla. 233 ( 1921 )

The question for determination in this case is whether the commissioners of Oklahoma City, by a motion receiving the vote of four of the commissioners, can transfer the supervision and control of the police department and the city jail from the mayor. Oklahoma City has a commission form of government and is operated under a charter framed and adopted as provided by section 3-a, art. 18, of the Constitution of the state. The charter provides for the election of five commissioners, who shall serve four years, and said charter assigns certain duties and departments to each commissioner. The instant case deals only with the duties of the mayor, who is commissioner of public affairs, and we will refer only to the sections of the charter applicable thereto.

Section 1, art. 2, provides:

"The elective officers of this city shall be five commissioners, i. e. the mayor, who is commissioner of public affairs; the commissioner of public safety, commissioner of accounting and finance, the commissioner of public works, and the commissioner of public property," etc.

Section 4, art. 2, provides as follows:

"The mayor, as such, shall be the chief executive officer of the city, and he shall see that the laws are enforced. In addition to other duties imposed upon him by the state and municipal laws, and the board of commissioners, he shall sign the commissions of all appointive officers," etc.

Section 6, art. 2, provides as follows:

Commissioner of Public Affairs — The commissioner of public affairs shall be superintendent of and have charge of the department of public affairs, which shall include the police department, municipal counselor and assistant, municipal judge, city jail, and relation of the city to other municipalities."

The charter, under the Constitution and statutes of this state, becomes the organic law of the city, and in addition to creating the offices of the five commissioners, and assigning them their duties, gives to the commissioners certain legislative powers.

On April 12, 1921, at a meeting of the commissioners it was moved by one commissioner and seconded by another that the police department and city jail, which are under the supervision of the mayor, who as we have seen should have charge of the police department and city jail under the charter, be assigned and transferred to the commissioner of accounting and finance, who should thereafter supervise and have charge of the police department and city jail, and said transfer to take effect from date, four commissioners voting in the affirmative and the mayor voting in the negative. The petition in this case sets out all of the different provisions of the city charter stated above and alleges that immediately after the passage of the motion above the commissioner of accounting and finance attempted to exercise supervision over the police department and the city jail. It is contended the action of the commissioners in transferring the supervision and charge of the police department from the mayor is void and in violation of sections 4 and 6, art. 2, of the city charter. The mayor, by his petition, asks to have the commissioner of finance and accounting enjoined from interfering with him in the performance of the duties assigned to him under the charter.

To the petition, the commissioner of accounting and finance filed a demurrer, which was sustained by the trial court. The mayor elected to stand upon the petition and refused to plead further, and the court dismissed the case, and from said judgment an appeal has been prosecuted to this court.

The only question involved is the force and effect of the motion, and its validity. Second, whether injunction is the proper remedy.

It has been the uniform holding of this court that city charters become the organic law of the municipality, and supersede the laws of the state in conflict therewith in so far as they attempt to regulate purely municipal matters. See Owen v. Tulsa, 27 Okla. 264, 111 P. 320; Lackpv v. Grant,29 Okla. 255, 116 P. 913; Mitchell v. Carter, 31 Okla. 592,122 P. 691; Burns v. Linn, 49 Okla. 526, 153 P. 826. The Constitution provides that the charter shall not be in conflict with the Constitution and statutes of the state, and it has been further held that such charter provisions, where they conflict with the general laws of the state in matters not purely municipal, must give way, and while they may run concurrently with the general laws of the state, they may not run counter thereto. Burns v. Linn, supra; Board of Education v. Best, 26 Okla. 366, 109 P. 563; State v. Cummings,47 Okla. 44, 147 P. 161.

In the case of Kemp v. City of Monett, Mo. Ct. of App. of St. Louis) 69 S.W. 31, it was said:

"A 'charter' is the municipal organic law, which no ordinance may override."

The courts have uniformly held that where an office is created by the Constitution, and the duties assigned to it by the Constitution, the Legislature has no power to transfer those duties to some other office. The rule is stated as follows:

"Where an office is created by or imbedded in the Constitution, and the duties thereof are defined by that instrument, or where the office antedated the Constitution, and its duties were eumerated by the statute at the time the Constitution was adopted, or where the office owed its origin to the common law, and had certain well-recognized duties attached thereto, or inherently connected therewith, or forming a substantial part thereof, it was not within the power of the Legislature to transfer such duties to an office of its own creation or to an officer selected and chosen in the manner different from that by which the constitutional officer was named." Trapp v. Cook Construction Co., 24 Okla. 854,105 P. 667; Insurance Co. of North America v. Welch, 49 Okla. 620,154 P. 48; Love v. Boyle, 72 Oklahoma, 180 P. 705.

This being the settled law in this state, and the charter of the city being the organic law of the city, the commissioners would have no power or authority to transfer from an office created by the charter the duties defined by the charter, unless there is some specific provision in the charter that authorizes such a transfer.

It is contended by the defendants, however, that section 11, art, 2, of the city charter authorizes such a proceeding. Said section is as follows:

"Board may assign duties to other departments. — The board of commissioners shall have the power to assign duties not specifically named above to any department to which they may properly belong, and shall have power by a vote of four out of five commissioners to transfer duties from one commissioner and one department to another commissioner and another department."

The question for consideration is, Did the framers of the charter in this sentence use the word "duties" in the latter part of the sentence to refer to the same "duties" referred to in the first part of the sentence, or did they use it in its broad and unlimited sense and refer to any and all duties? In the determination of this matter the court must be guided by the following proposition, to wit:

"In the construction of constitutions, statutes, and city charters the intent of the lawmakers, when ascertained, must govern." Hudson v. Hopkins, 75 Okla. 260, 183 P. 505; De Hasque v. A., T. S. F. R. Co., 68 Oklahoma, 173 P. 73.

In an endeavor to ascertain the intent of the lawmakers, there are certain cardinal rules of construction to be used as an aid in guiding the court in arriving at the intention of the framers of the charter. One of these rules, as announced in 25 R. C. L. page 996, is as follows:

"General words in a statute must receive a general construction, unless there is something in it to restrain them, but in accordance with what is commonly known as the rule of ejusdem generis, where, in a statute general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose."

This court, in applying the rule of ejusdem generis in the case of Board of County Commissioners v. Grimes, 75 Okla. 219,182 P. 897, in the body of the opinion stated as follows:

"General words do not explain or amplify particular terms preceding them, but are themselves restricted and explained by the particular terms."

The same rule was announced and applied in the case of Wolfe v. Blackwell Oil Co., 77 Okla. 81, 186 P. 484.

Let us apply this rule of construction to this section of the charter. The framers of the charter in the first part of this sentence or section used the term, "power to assign duties not specifically named above to any department to which they may properly belong," and in the latter part of the sentence used the term, "power by a vote of four out of five commissioners to transfer duties from one commissioner and one department to another commissioner and another department." The only controversy is whether the word "duties" in the latter part of the sentence is restricted to the same duties referred to in the preceding part of the sentence, or whether it was used in the latter part of the sentence in a broader sense and referred to any and all duties. If we apply the rule that general words in the same section do not amplify particular terms preceding them, but are themselves restricted by the particular term, then the word "duties" used in the latter part of the sentence is restricted to the same duties referred to in the preceding part of the sentence, unless as stated in R. C. L., supra, there is a clear manifestation of a contrary purpose, and there is nothing in the section to indicate any contrary purpose, nor is there any other provision of the charter that would indicate a contrary purpose. The first part of the sentence refers to the duties the commissioners may assign, and the latter part provides how the commissioners, after once assigning certain duties, may thereafter transfer those same duties to another department.

In this same connection the rule announced in 36 Cyc. 1132, is stated as follows:

"Where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout; and where its meaning in one instance is clear this meaning will be attached to it elsewhere, unless it clearly appears from the whole statute that it was the intention of the Legislature to use it in different senses."

In 25 R. C. L. page 995, it is stated:

"Where a word susceptible of more than one meaning is repeated in the same act or section of an act (either meaning being in each case open to reasonable adoption), a presumption arises, more or less forcible according to the circumstances, that it is used throughout in the same sense."

In the case of Rhodes v. Weldy (Ohio) 20 N.E. 461, the court said:

"Where the meaning of a word or phrase in a statute is doubtful, but the meaning of the same word or phrase is clear where it is used elsewhere in the same act, or an act to which the provision containing the doubtful word or phrase has reference, the word or phrase in the obscure clause will be held to mean the same thing as in the instances where the meaning is clear."

By the application of the rules just stated, the same conclusion must be reached as when applying the rule of ejusdem generis.

There is another rule of construction that is used as a guide in construction of statutes:

"If there is a doubt or ambiguity in a statute, it is the duty of a court in interpreting the same to give to it the most reasonable and just interpretation as the legislative intent rather than an interpretation unreasonable, unjust, or one that will lead to an absurdity. Ledegar v. Bockoven, 77 Okla. 58,185 P. 1097.

If we consider this section of the statute as ambiguous, and subject to two constructions, let us see the absurdity, if any, it would lead to if given the interpretation contended for by defendants. If the word "duties," as used in the last portion of the sentence, refers to any and all duties and is not restricted in any manner, then the commissioners, by the votes of four of them, have power to transfer all the duties specifically assigned to one commissioner by the charter to some other commissioner, or distribute said duties among the other commissioners, and in this manner deprive one commissioner from having any duties whatever to preform, leaving him with an office and no duties to perform. Could it be said that such was the intention of the framers of the charter? By this same interpretation four commissioners could by their vote transfer all the duties of their offices to one commissioner, and place upon him and his department all the duties of the city government and leave themselves free to draw their salaries without any duties, whatever to perform. The suggestion of such a state of facts seems to us to lead to such an unreasonable construction that no argument is required to answer the same.

It is contended, however, that the rule announced in the case of State ex rel. Owen v. Carter, 77 Okla. 28, 186 P. 454, is applicable. We are unable to agree that this rule of law has any application to the facts in the case at bar. The charter created the different offices and assigned certain duties thereto. If the charter contained a provision that said duties shall belong to such department, until otherwise provided by ordinance, or until changed by the commission, then said case might be authority; but no such a provision is contained in the charter. The charter has various sections, assigning to each department certain duties. These are particular enactments of the charter relating to certain duties of each department.

Section 11 does not attempt to assign any duties to any particular department, but the section has for its purpose the vesting of certain power in the commissioners, to wit: First, power to assign any duties not specifically assigned by the charter; second, power to transfer the duties it has assigned, to some other department. Even if we apply the rule announced in the case of Owen v. Carter, supra, to wit:

"Where there is, in the same statute, a particular enactment, and also a general one, which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment"

— the charter provisions assigning certain duties to each department are particular enactments, and deal only with certain duties. If we concede that the first part of the sentence in section 11 is a particular enactment vesting certain power in the commissioners in relation to duties not specifically assigned, and the latter part of the sentence is a general enactment granting powers to the commissioners to transfer certain duties and if we say the enactments are in conflict, we are in no better position, for the reason the particular enactment, by applying this rule, must stand, and the general enactment does not apply. But the fallacy of this argument is that the sections deal with different subjects; the one assigns certain duties to each department, the other section has for its purpose vesting of power in the commission to assign certain duties, and in the same sentence power to transfer duties the commission has assigned.

It is contended, however, that the control of the police department is purely a municipal matter. While we do not think this question is material to a decision in this case, yet this court has held the enforcement of the laws of the state are not purely local or municipal matters, but are matters in which the state has an interest. As was said in the case of State ex rel. Burns v. Linn, 49 Okla. 526, 153 P. 826, as follows:

"The state may impose upon the local officers of the city of Tulsa specific duties in the matter of the enforcement of the laws of the state having force and effect within the city, and may provide penalties for failure to discharge such duties, and in respect to the duties so imposed the municipality and its officers are the agents of the state, and subject to its command and control at all times."

In the same opinion, the court stated as follows:

"The state has a sovereign interest in the enforcement of its general laws against the traffic in intoxicating liquors, against gambling and prostitution, within the territorial limits of the city of Tulsa."

While the court in that case referred only to the laws against traffic in intoxicating liquor, gambling, and prositution, as those were laws at issue in that case, yet the state is just as much interested in the enforcement of all other state laws as those enumerated. The state is just as much interested in enforcement of laws against the crimes of murder, burglary, larceny, and various other crimes, as it is the enforcement of laws against the liquor traffic, gambling, and prostitution. Not only are the mayor and police department amenable to the charter provisions for failure to enforce the laws, but they are also amenable to the state for failure to discharge their duties in the enforcement of state laws.

Section 4 of article 2 of the charter provides that the mayor shall see that laws are enforced, and places this duty upon him. Section 506, Rev. Laws 1910, places the same duty upon the mayor. A very similar case arose in Misssouri, to wit, Francis v. Blair, (Mo.) I. S.W. 297. The court in the syllabus announced the law as follows:

"The mayor of a city, who is made chief executive officer thereof, and whose duty it is to see that all laws of the state and ordinances of the city are observed within the city limits, must necessarily possess control and supervision ever the police and local constabulary.

"Under such circumstances, a resolution adopted by the board of police commissioners, Whereby they take from the mayor all control over the police force, and assume that control themselves, will be absolutely void".

It is impossible by the aid of any of the rules of construction to give section 11, art. 2, of the charter the construction placed upon it by defendants in error.

It is next suggested that injunction is not the proper remedy. A court of equity will not aid by injunction one who is out of office to secure that office from one who is in the office actually performing its duties under some color of authority. But such is not the fact in the case at bar. The mayor is in office, and claims authority by virtue of the city charter to perform certain duties. No one is attempting to oust him from office. The commissioner of finance and accounting is in possession of his office, and contends, not that he is entitled to the office of mayor, but entitled to perform certain duties by reason of the motion passed by the city commissioners. This court had the identical question before it in the case of Love v. Boyle, supra, and while the court did not state that injunction was the proper remedy, yet the court held the petition did not state a cause of action, and decided the case upon its merits. If injunction is not the proper remedy, then there is no remedy available. As was said in the case of Francis v. Blair., in the body of the opinion:

"It is contended that injunction will not lie in this case, the plaintiff having a remedy at law. What is that remedy? He cannot institute a quo warranto proceeding, because the right of defendants respectively to the office of police commissioner is not controverted. Quo warranto is resorted to for the purpose of testing the civil right by trying the title to an office or franchise, and ousting the wrongful possessor. High, Extr. Leg. Rem. 603. He cannot have a writ of prohibition, because that is 'an extraordinary writ issuing out of a court of superior jurisdiction, and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested.' * * * If injunction will not lie, the plaintiff has no remedy whatever. He has, neither as an individual nor an officer, sustained any injury not common to the entire community, nor any special damage for which he may sue and recover judgment. The result of the argument against the remedy sought by plaintiff would be, if sustained, to strip the mayor of the executive power conferred upon him by the law, and render him powerless to discharge the grave and responsible duties imposed upon him by the law of the land. If he has the right, the law will afford a remedy to enforce that right, and any remedy adequate to accomplish the end known to the law may be resorted to."

Cases, although not identical, somewhat similar are the cases of Brady v. Sweetland, 13 Kan. 41; Armijo v. Baca, 3 N. Mex. 490, 6 P. 938; Guillotte v. Poincy (La.) 6 So. 507; Wheeler v. Board of Fire Commissioners (La.) 15 So. 179; Goldman v. Gillespie (La.) 8 So. 880; Ewing v. Thompson, 43 Pa. St. 372; Kerr v. Trego, 47 Pa. St. 292; and Ehlinger v. Rankin (Tex. Civ. App.) 29 S.W. 240.

We therefore conclude that the transferring of the duties from the mayor by motion upon vote of four commissioners was absolutely void, and without authority, and it was error for the trial court to sustain a demurrer to the petition.

For the reasons stated, the judgment of the trial court is reversed, and remanded, with instructions to overrule the demurrer and to take such further proceedings as are not inconsistent with the views herein expressed.

HARRISON, C. J., and PITCHFORD. KANE, JOHNSON, ELTING, and NICHOLSON, JJ., concur. MILLER and KENNAMER, JJ., dissent.