State v. Harper, Clerk of District Court ( 1911 )

WILLIAMS, J.

This proceeding in error is to review the judgment of the trial court entered in an agreed case (section 6051, Comp. Laws 1909).

The stipulated facts are as follows:

“First. Said E. E. Reardon is the duly elected, qualified and acting county attorney of said Oklahoma county, and said Hathaway Harper is now, and has been at all times since November, 1907, the duly elected, qualified, and acting clerk of the district court of said Oklahoma county.

“Second. Said Hathaway Harper, as such district clerk, has not filed with the board of county commissioners the verified report of the work of his office for the month of August, 1910, mentioned in section 9 of chapter 69 of the Session Laws of the Legislature of the state of Oklahoma, same being section 9 of Senate Bill No. 1 of the Extraordinary Session of the Second Legislature of the state of Oklahoma, said Senate Bill being reported at pages 139 to 143 of said Session Laws, said report being required by said section 9 to show the total fees collected in each case.

“Third. The position taken by the plaintiff is that said report should be made and filed in accordance with the provisions of said section 9, and the position of the- defendant is that he is not required to make and file said report because:

“(a) Said above-described Senate Bill No. 1 is unconstitutional and void, because the title of said bill fails to comply with the requirements of section 57 of article 5 of the Oklahoma Constitution.

“(b) Said Senate Bill No. 1 is unconstitutional and void because the title to said bill is vague, uncertain, and indefinite, and fails to show the contents of said bill, and fails to comply with the provisions of section 57 of article 5 of the Oklahoma Constitution.

“(c) Because said Senate Bill No. 1 covers numerous subjects, and is violative of that portion of the provisions of.section 57 of article 5 of the Oklahoma Constitution providing that every act of the Legislature shall embrace but one subject, which shall be clearly expressed in the title, except general appropriation bills, general revenue bills, and bills adopting a code, digest or revision of statutes.

“(d) Because said Senate Bill No. 1 is vague, uncertain, and indefinite in its provisions, and is void for want of certainty.

“(e) Said Senate Bill No. 1 does not affect this defendant, because of the provisions of section 10 of article 33 of the Constitution of Oklahoma, providing that no change shall take place in the salary or emoluments of any public official after his election or appointment or during his term of office, unless by operation of law enacted prior to such election or appointment.

“(f) Because said Senate Bill No. 1, if it is constitutional, is not in force and effect at the present time.

' “(g) Because said Senate Bill No. 1, if it is constitutional, will not be in force and effect until after the official publication by the United States government of the population of Oklahoma county as determined by the census of the year 1910.

“(h) Because the caption of said Senate Bill No. 1 does not include or cover the making of said report by defendant.

“Fourth. And for the purpose of having the courts determine the controversy between the plaintiff and the defendant as to the constitutionality and force of said Senate Bill No. 1, and particularly of said section 9 of said Senate Bill, as to which the plaintiff and the defendant are unable to agree, it is mutually agreed between the plaintiff and the defendant that this controversy be submitted to said court, and by lawful appeal to the higher court, if either party desire such appeal, it is agreed that, waiving summons, this case be presented to .said superior court of Oklahoma county for hearing and determination as to the law, taking the facts as above stated, and that it be presented to the Supreme Court of this state if either party appeals as above set forth.

“Fifth. In case it should be decided that said Senate Bill No. 1 is constitutional and is now in force, a peremptory writ of mandamus shall issue against defendant requiring him to make and file said report in accordance with the provisions of section 9 of said Senate Bill No. 1, and that if it should be decided that said Senate Bill No. 1 is not constitutional, or, if it is constitutional, that it is not now in force, that judgment be entered in favor of the defendant. But, as above shown, either party is to have the right of appeal to the Supreme Court if so desired.”

Under the agreed facts, the questions (1) as to the invalidity of the bill on account of defective title (section -57, art. 5, Const.), and (2) that, if said bill is valid, it does not affect the compensation of the defendant in error, on account of the provisions of section 10, art. 23, of the Constitution, are raised.

The first question is covered by paragraphs “a,” “b,” “c,” and “d” of the agreed facts. The act referred to in the agreed statement as Senate Bill No. 1, being an act approved on the 19th day of March, 1910 (Sess. Laws 1910, c. 69), entitled “An act relating to certain county and district officers,” has been held b)r this court to be valid, and not in conflict with section 57 of article 5 of the Constitution. Jefferson v. Toomer, Clerk, 28 Okla. 658, 115 Pac. 793; Pottawatomie County v. Reasor, 29 Okla. 209, 116 Pac. 801.

As to the second contention, section 18 of the Schedule is as follows:

“Until otherwise provided by law, the terms, duties, powers, qualifications, and salary and compensation of all county and township officers, not otherwise provided by this Constitution, shall be as now provided by the laws of the territory of Oklahoma for like named officers. * * * ”

By section 2, art. 17, of the Constitution, the office of clerk of the district court is created in each organized county of this state. It is, therefore, contended by defendant in error that, the clerk of the district court under the state government being a county officer, section 18 of the Schedule applies, and the salary and compensation by said section provided for such office is that “provided by the laws of the territory of Oklahoma for like named officers.” That the act of the legislative assembly of the territory of Oklahoma, providing fees and compensation for the clerks of the district courts, was void, is well settled. Pitts v. Logan County, 3 Okla. 719, 41 Pac. 584; Bohart et al. v. Anderson, 24 Okla. 82, 103 Pac. 742, 20 Ann. Cas. 142; United States v. MacMillan, 165 U. S. 504, 17 Sup. Ct. 395, 41 L. Ed. 805. Section 13 of the Organic Act (Act May 2, 1890, c. 182, 26 St. at L. 88), providing that “there shall be allowed to the attorney, marshal, clerks of the Supreme and district courts the same fees as are prescribed for similar services by such persons-in chapter sixteen, title Judiciary, of the Revised Statutes of the United States,” was held in Bohart et al. v. Anderson, supra, to be locally, inapplicable, and therefore neither extended to nor remaining in force after the erection of the state.

Section 2 of the Schedule provides:

“All laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this Constitution, and which are not locally inap--plicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitation or are altered or repealed by law.’’

Section 21 of the Enabling Act, approved June 16, 1906 (Act June 16, 1906, c. 3335, 34 St. at L. 277), provides that “all laws in force in the territory of Oklahoma at the time of the admission of said state into the Union shall be in force throughout said state, except as modified or changed by this act or by the Constitution of the state, and the laws of the United States not locally inapplicable shall have the same force and effect within said state as elsewhere within the United States.” It being settled by Bohart et al. v. Anderson, supra, that section 13 of the Organic Act of the territory of Oklahoma and section 828 of chapter 16, tit. 13, of the Judiciary Act (1 U. S. Comp. St. [1901] p. 635), fixing the fees or compensation for the clerks of the district courts of the United States, are locally inapplicable and neither extending to nor remaining in force after the erection of the state, and the laws of the territory of Oklahoma not having provided any salary or compensation for clerks of the district courts, it follows that until the enactment of said law known as the “County Fee and Salary Law,” being an act entitled “An act relating to certain county and district officers,” (chapter 69, pp. 129, 143, Sess. Laws 1910), no law was in force in this state fixing the compensation or salary of the clerks of the district courts. In Bohart et al. v. Anderson, supra, it was held that:

“When the compensation of an officer is not fixed by law at the time he renders a service, but it clearly appears that it was the intention of the lawmakers that he should receive a reasonable compensation, to be fixed by law, until it is so fixed he is entitled to a reasonable compensation, to be determined by the proper tribunal.”

Under this rule, the question arises as to whether section 10 of article 23 of the Constitution prevented the Legislature from enacting a law fixing the compensation or salary of the defendant in error after his election or during his term of office. In Merwin v. Board of Commissioners, 29 Colo. 169, 67 Pac. 285, it is said:

“Section 30 of article 5 of the Constitution forbids the enactment of a law which increases or diminishes the salary or emoluments .of a public officer after his election or appointment. After Merwin was appointed to his office, and some of the services were performed for which recovery is sought, the board fixed his salary at $1 a year. The general fee act, which prescribes certain fees for district attorneys, was in force when plaintiff was appointed. The argument is now made that the fees pertaining to the office of district attorney, and to which plaintiff says he would be entitled in the absence of a salary fixed for him by the board, would amount to more than the salary fixed after he entered upon the discharge of his duties; hence, in effect, his salary was diminished after his appointment. The point is not good for several reasons. Nowhere do we find that fees have been fixed for deputy district attorneys, though fees for district attorneys have been (Sess. Raws 1891, p. 221) prescribed. But plaintiff is not suing for fees belonging to his principal. Unless the board of commissioners has fixed the deputy’s salary, or in its discretion, allowed certain fees for the deputy’s services, he is entitled to nothing. In other words, unless the board makes him an allowance of fees, or gives him a salary, there is no provision of law for his compensation. Neither the act of 1885 (Sess. Laws 1885, p. 176) nor of 1889 (Sess. Laws 1889, p. 150), which are the only statutes authorizing the appointment of deputy district attorneys, fixes a salary, or provides a compensation or fee; and we are cited to no statute in which such compensation is mentioned, except, as just stated, the sections which the plaintiff himself attacks. If these statutes are invalid, then no provision by law has been made for compensation of deputy district attorneys. As was 'well said by Mr. Justice Wilson in Otero Co. v. Wood [11 Colo. App. 19, 52 Pac. 214], supra: ‘The right of an officer to have payment of his costs made by the county is purely statutory. At common law the costs made by the defendant, if paid at all, were paid by him. The costs of the prosecution, no matter what the event of the trial, were unpaid. On the part of the state or sovereign, there was neither payment nor recovery of costs.’ Bynum v. Board, 100 Ind. 90; Board v. Harman, 101 Ind. 551. Public office is not a contract, nor the result of a contract; and, where compensation is not fixed at time of election or appointment; it may be thereafter fixed," and, until fixed, no right.to compensation, either,fees or salary, attaches. Mechem, Pub. Off. secs. 855-858.”

See, also, State v. McDowell, 19 Neb. 442, 27 N. W. 433; Purcell v. Parks, 82 Ill. 346; Rucker v. Supervisors, 7 W. Va. 661; Stuhr v. Hoboken, 47 N. J. Law, 147.

As to the office of district clerk, where no compensation had been fixed, we conclude that the fee and salary bill of March 19, 1910, became effective 90 days after the adjournment of the session of the Legislature at which it was passed.

The judgment of the trial court is reversed, and this cause remanded, with instructions to set aside the judgment and to award a peremptory writ of mandamus against the defendant in error in favor of the plaintiff in error.

TURNER, C. J., and HAYES, KANE, and DUNN, JJ., concur.