Phelps v. Childers , 184 Okla. 421 ( 1939 )

This is an original action filed by the plaintiffs, Justices of the Supreme Court of Oklahoma, elected to such office on November 6, 1934, seeking to compel, by mandamus, the defendant C.C. Childers, State Auditor, and Hubert Bolen, State Treasurer, to approve and pay their several claims for services performed in compliance with the provisions of House Bill 239, Session Laws 1936-37, page 33, which became effective August 10, 1937. Since the filing of this action Frank Carter has become State Auditor and Carl Sebring State Treasurer. On motion they have been substituted as defendants.

The three Justices concerned have entered their disqualifications, the remaining regular members of the court have recused themselves, and the Governor has appointed the present nine special Justices to hear the case.

Plaintiffs plead their election to office, their written acceptance and agreement to perform the services as called for in the act, the performance of such service, the filing of verified claims covering the same, and the action of the State Auditor disallowing the same. An alternative writ of mandamus issued in usual course.

The defendants' answer and amendment thereto admits all the matter pleaded save the performance of the services and alleges the act violates section 10, art. 23, Oklahoma Constitution, in that the real purpose, intent, and motive of the Legislature in passing it was to unconstitutionally increase the salary and emolument of the offices of the plaintiffs.

The bill provides for the revision and compilation of the civil, probate, and appellate statutes of this state, recites the necessity of such revision, directs the Justices of this court elected in November, 1934, upon their written acceptance of the terms of the act filed with the Secretary of the State, to perform such service, fixes the compensation for such service at $2,500 annually, payable monthly, requires the work as and when completed to be filed in the State Library, and that the work must be completed by the second Monday in January, 1941. The amended answer pleads that the act also violates section 1, art. 4, and sections 32, 51 and 59, art. 5, Oklahoma Constitution, and a denial of the performance of the service by plaintiffs. We shall treat the questions raised in the order presented.

This court is composed of nine Justices. When the act was passed the salaries of six of the Justices was fixed at $7,500 per year (section 3481, O. S. 1931, S. L. 1936-7, p. 7). The salary of the three embraced in the act was fixed at $5,000 per year under chapter 138, S. L. 1933. Every two years three Justices of this court are elected to a six-year term. The official duties of the several Justices are the same. This unusual and unequal situation gives rise to the Attorney General's primary assault upon the act. He contends the controlling motive in passing the act was to unconstitutionally increase the salary and remuneration of the plaintiffs, in violation of section 10, art. 23. which prohibits increasing the salary or emolument of any public officer by an act passed after his selection and during the term he was selected to serve. Our Legislature, unlike the national Congress, is entrusted with general authority to make laws at its discretion, subject only to restrictions found in the state and federal Constitutions.

State ex rel. Caldwell v. Hooker, 22 Okla. 712. 98 P. 964:

"It is not within the province of the judiciary to question the wisdom or motives of the lawmaking body in the enactment of a statute." (State v. Johnson, 90 Okla. 21, 215 P. 945; Sheldon v. Grand River Dam Authority, 182 Okla. 24, 76 P.2d 355.)

As was well stated in Commonwealth v. Moir, 199 Pa. 534, 49 A. 351, 53 L. R. A. 837, 85 Am. St. Rep. 801, a similar case:

"It ought not to be necessary to restate principles so fundamental, nor to cite authorities so familiar and so long established. But the range of the argument, and the energy with which it was pressed, have seemed to make it proper to set forth clearly the only question before the court, the constitutionality of the statute in question. Much of the argument and nearly all of the specific objections advanced are to the wisdom and propriety and the justice of the act, and the motives supposed to have inspired its passage. With these we have nothing to do. They are beyond our province, and are considerations to be addressed solely to the Legislature."

In the case of John L. Love, Attorney General, v. Baehr,47 Cal. 364, the Supreme Court of California in passing upon a very similar act held:

"It is true, as suggested by counsel, that the Legislature might abuse its trust, and perhaps partially evade the constitutional prohibition by contracting with these officers for the performance of trivial, non-official services, at an exorbitant compensation. But all legislative power is subject to abuse; and under our form of government, the only remedy is to be found at the ballot box."

Any other rule would permit the courts to hear evidence tending to establish the motive of the Legislature in passing any statute and place the very existence of the law upon a controverted question of fact.

Courts may not declare an act of the Legislature unconstitutional unless it clearly and plainly violates some express provision. In re Walters Nat. Bank, 100 Okla. 155,228 P. 953; 6 Rawle C. L. 104; Cooley's Coustitutional Limitations (8th Ed.) p. 351:

"Nor are the courts at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words. 'When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution.' * * *"

In Protest of Downing et al., 164 Okla. 181, 23 P.2d 173, we said:

"It is only where an act of the Legislature is clearly, palpably, and plainly inconsistent with the terms and provisions of the Constitution that the courts will interfere and declare such an act invalid and void."

In Excise Board v. Chicago, Rock Island Pacific Ry. Co.,168 Okla. 523, 34 P.2d 268, it is said:

"Statutes are not overthrown by courts because of the evil or asserted evil of their tendencies, unless they are repugnant to some provision of the Constitution."

Does the act increase the salary or remuneration of these public officials? It was passed and became effective during their term of office. In arriving at the true meaning of section 10, article 23, we must look to and consider its purpose, reason, and object. Similar provisions are found in the federal and other state Constitutions. It is the performance of the official duties of the office that these provisions seek to protect. If the duty or service called for by the act is beyond the scope of or not germane to any of the duties of the office, then necessarily it must fall beyond the pale or field of official action the provision protects, but if it falls within this protected field, it must be stricken down regardless of the wisdom or necessity of the measure. Courts cannot sustain the constitutionality of a statute because of its wisdom, merit, or necessity, and contrariwise, may not strike it down because it may be unwise or unnecessary.

The Kentucky Legislature provided for a judicial council to be composed of certain judges, who, for their services on the council, were to receive extra compensation. The act was passed during the judges' terms of office. In Coleman, Auditor, v. Hurst, 226 Ky. 501, 11 S.W.2d 133, the act was sustained. The situation is so analogous to the case at bar that it appears highly probable our Legislature was familiar with that decision when the act under consideration was passed.

The Kentucky court declared:

"The duties of members of the Judicial Council are not duties added to the office of circuit judge, for which no compensation may be allowed during the term, but the duties are whollyoutside of the duties which a circuit judge is required to perform."

The court held valid the extra compensation allowed for the performance of the new duties imposed on the judges.

In the case of Love, Attorney General, v. Baehr, 47 Cal. 364, supra, the court said:

"The Legislature has no more power to compel the Attorney General to perform such service as a part of the duties of his office than it has to compel the Superintendent of Public Instruction to take charge of the State Prison * * *. If, however, he has performed a service which, under the Constitution, is wholly foreign to his office, and which is not and cannot become a part of his official duty as Attorney General, and if the Legislature has seen fit to compensate him for this unofficial service, there is no constitutional impediment to hinder them from so doing."

In State ex rel. Jermit v. Stevens (Nev.) 116 P. 601, the Supreme Court of Nevada, under a similar provision of the Constitution, held that a district judge could accept additional compensation for acting as townsite trustee. This court has announced the controlling and well-settled rule by which every such measure must be tested. In the case of Board of Commissioners, Creek County, v. Bruce, 51 Okla. 541,152 P. 125, an act providing for the issuance of hunting licenses by county clerks and authorizing them to retain 25 cents of the fee for each license so issued as compensation was tested. It was held that the duty so imposed was merely additional and germane to the duties of the office of the county clerk, and therefore unconstitutional. The controlling rule is stated in the first syllabus as follows:

"A public official is bound to perform the duties of his office for the compensation fixed by law. This is true as to additional duties imposed upon the office by the Legislature after he enters upon his term, provided such duties are germane to the office."

The decision turned on the character of the new duties, that is, whether germane or nongermane. We quote from the opinion:

"As a general rule, a public officer is bound to perform the duties of his office for the compensation fixed by law. This is true as to additional duties imposed upon the officer by the Legislature after he enters upon his term, so long as theseduties are germane to the office."

This rule was first announced by this court in the case of Finley v. Territory, 12 Okla. 621, 73 P. 273. It was there held that it was the duty of a probate judge under the law then existing to account for fees received by him while acting in townsite matters and that such duties were not extraneous or foreign to the office, especially in view of the fact that territorial probate judges by act of Congress long prior to this particular judge's assumption of office were required to act in townsite matters. The court took pains to distinguish the case from instances involving nongermane duties of the office. The court, discussing the case of United States v. Brindle, 110 U.S. 688, 4 Sup. Ct. 180, 28 L. Ed. 286, involving such a situation, said:

"Brindle was appointed receiver of public moneys at Lecompton, Kan., and while he was performing the duties of receiver of public moneys he was appointed as a special commissioner to dispose of the Delaware Indian trust lands situated near Ft. Leavenworth, Kan. The Supreme Court of the United States held that he was entitled to a commission on sales of these lands in addition to his compensation as receiver of public moneys. It was expressly held in this case by the Supreme Court that it was no part of the duty of Brindle, as receiver of public moneys of Lecompton, Kan., to sell the trust lands and receive the payments thereof. His duties in connection with that office were to receive and account for public moneys paid for public lands. The moneys paid for the Indian lands were trust moneys and not public moneys. And hence when Brindle was appointed to dispose of the trust lands he was employed to render service in no way connected with the office he held, and no additional duty was imposed upon him as receiver of the land office. In other words, the duties were entirely separate and distinct. They were not one and the same office. Had it been a part of the duties of the receiver of public moneys at Lecompton, Kan., to sell and dispose of Indian trust lands, then certainly it would have been a part of Brindle's duties as receiver of public moneys to perform these additional duties, and no additional compensation could have been allowed. The same doctrine was announced by the Supreme Court of the United States in Converse v. United States, 21 How. 463, 16 L. Ed. 192. In United States v. Saunders, 120 U.S. 126, 7 Sup. Ct. 467, 30 L. Ed. 594, it was decided by the Supreme Court of the United States that the federal law prohibiting the allowance of additional pay or extra compensation to public officers has no application to two distinct offices, places, or employments, each of which has its own duties and compensation, which offices may both be held by one person at the same time. In this case the rule announced in United States v. Brindle was followed."

"In each of these cases the Supreme Court of the United States held that the offices were entirely separate and distinct and neither dependent upon the other, and therefore the allowance of additional pay, or extra compensation, was permissible. But in the case at bar, as we have shown, the duties that are imposed upon the probate judge attach to that office, and are additional duties and burdens imposed upon such office."

Going to the reported cases and text writers we find complete accord in the statement of the rule. The Minnesota court in the case of State ex rel. v. Vasaly, 98 Minn. 46, 107 N.W. 818, says:

"It is elementary that, while a public official cannot require extra pay for services rendered by him for which compensation by way of salary is allowed by law, he may recover pay for other services which he may render outside of and in addition to his ordinary official duties which could as well be performed by any other person as by him."

In the annotations appearing in 21 A. L. R. 256, 258, we find the following:

"It is well settled that a statute or ordinance imposing on an officer new duties which are incident to his office, and providing an additional salary or emolument therefor, is in violation of a constitutional provision against increasing the compensation of an officer during his term of office." (And, under "Duties Foreign to Office"): "Where new duties are delegated by statute to a public officer which are without the scope or range of his office, and additional compensation is provided therefor, the statutory increase is not affected by a constitutional provision prohibiting any increase in the compensation of a public officer after his election or appointment."

A still later annotation on the same subject is found in 51 A. L. R. 1522, wherein by way of introduction it is said:

"It will be seen from the earlier annotation that where new duties are delegated by statute to a public officer, which are without the scope or range of his office, and additional compensation is provided therefor, the increase is held to be constitutional, and the later decisions are to the same effect."

The Attorney General in his brief recognizes the rule as announced by the many courts, but contends that in Riley v. Carter, State Auditor, 165 Okla. 262, 25 P.2d 666, contrary rule was announced. We have carefully examined that opinion. It is an excellent treatise on the importance and necessity of an independent judiciary. It contains nothing criticizing, in any way, the germane-nongermane rule declared by the text writers and by the courts of the several states. The argument of the Attorney General is built upon the erroneous assumption that the act does increase the salary and emoluments of the plaintiffs. It is admitted that the service provided for in the act is foreign, or rather not germane, to the duties of the office of Justice of the Supreme Court. Attorney General's brief, page 67.

It must be evident that such service is foreign to the official duties of a member of this court. Had these very plaintiffs prepared a work such as called for and described in the act in question, and copyrighted it, even the Legislature could not use it without their consent and compensating them for the same, nor could they be properly censored for so doing unless in performing such work they permitted the same to interfere with their official duties.

When a statute imposes duties or calls for the performance of service that is nongermane and beyond the scope of the duties of the office as the same existed prior to the enactment of the statute, the one holding such office may not be required to perform the nongermane duty or service and cannot be disturbed in the enjoyment of his office for his refusal to do so. Any other rule would permit the Legislature to drive an executive or judicial officer from office by passing a statute placing upon such officer nongermane duties or requiring nongermane service, and thereby permit the invasion of the very field section 10, article 23, protects. The cases all hold that where the duties are nongermane and the officer accepts and agrees to perform the nongermane duty or service, the act does not violate such a constitutional provision. See the annotation to the A. L. R. citations, supra.

We have given careful consideration to the Attorney General's argument that these plaintiffs are receiving less salary than their associates, and that the compensation provided for in the act will result in their receiving the same compensation as their associates. This same argument was made in many of the cases announcing the rule. It is not within the province of the judiciary to question the wisdom or motives of a law-making body in the enactment of a statute, and the same cannot be taken into consideration in determining its constitutionality. (State v. Johnson, 90 Okla. 21, 215 P. 945; Dickinson v. Perry,75 Okla. 25, 181 P. 504.) As stated in the Commonwealth v. Moir case, supra:

"With these we have nothing to do. They are beyond our province, and are considerations to be addressed solely to the Legislature. This court is not authorized to sit as a council of revision to set aside or refuse assent to ill-considered, unwise, or dangerous legislation. Our only duty and our only power is to scrutinize the act with reference to its constitutionality, to discover what, if any, provision of the Constitution it violates."

If there was any mistake made in the enactment of this measure, it was on the part of the Legislature, and under decisions of this and other courts we cannot inquire into the wisdom of the legislation.

The defendants charge that the act violates section 1 of article 4 of the Oklahoma Constitution, which provides for three separate and distinct departments of government and that neither shall exercise "powers properly belonging to either of the others." Neither this section nor the decisions construing the same support this contention. The section operates only to prohibit each department from exercising powers "properly belonging" to one of the other departments of government. In short, it is to prevent one department from interfering with the proper functions of other departments. Unless the duty or the power involved does properly belong to some other branch of the government, this section does not forbid its exercise by the branch of government under consideration. The act in question does not grant "powers", it provides for duties. See Ross v. Board (N. J.) 55 A. 310; People Y. Provines, 34 Cal. 520; and State v. Circuit Court (N.J.) 15 A. 272.

In State Bar v. McGhee, 148 Okla. 219, 298 P. 580, this distinction was clearly set forth. It was there held that even though a duty or power does not properly belong in one of the three departments of government, it may constitutionally be exercised by that department unless it "properly belongs" to one of the other two departments. The following Oklahoma decisions recognized the same rule: Rumsey v. Diamond,127 Okla. 72, 259 P. 849; Levine v. Allen, 96 Okla. 252,221 P. 771; City of Guthrie v. New Vienna Bank, 4 Okla. 194, 38 P. 4; Oklahoma Aid Ass'n v. Thomas, 125 Okla. 190, 256 P. 719; Riley v. State ex rel. McDaniel, 43 Okla. 65, 141 P. 264; Remer v. State, 3 Okla. Crim. 706, 109 P. 247.

The compiling and annotating of statutes is not anexclusive function or power in either the executive, legislative, or judicial branch of the government, and certainly the performance of the same can in no manner interfere with either the executive or legislative branch of the government.

Defendants assert that if House Bill 239 is considered as conferring duties upon individuals and not Justices of the Supreme Court, then it violates sections 32, 51, and 59 of article 5 of the Oklahoma Constitution, which relate to special or local laws, forbid the passing of any law granting to any individual any exclusive rights, privileges, or immunities, and that laws of a general nature shall have a uniform operation throughout the state. It should be noted that the proposition is stated in the conditional or tentative manner; and that if the act is not considered as conferring duties upon individuals, the proposition is concededly not applicable. The act does not purport to assign powers to any individual. It provides for the performance of duties by a class, namely, those Justices who were elected at the November, 1934, election, a class who had at least two years of experience on the Supreme Court and had four years yet to serve. The daily work of the members of this court requires them to deal with and study the very procedural statutes the act seeks to have revised. Their service on this court of necessity gives them a great opportunity to be better qualified than other classes of lawyers or judges. The plaintiffs do the work separate and apart from their judicial duties. The duty is not assigned to them as individuals, but as a class. Furthermore, there are no "exclusive" rights, privileges, or immunities involved in the doing of the work. Many instances may be found in our statutes where the Legislature has imposed upon certain groups of officers, by naming the offices instead of individuals, duties to be performed in the interest of the state. It is clear that such a method is not the granting of a power to any individual, within the meaning of the Constitution.

The constitutional prohibition against special legislation, unless notice of the intended introduction of such bill be advertised as required by section 32, article 5, can be applied only when proof is made that no such publication occurred. Dunlap v. Board of Co. Com'rs Carter Co., 85 Okla. 295,205 P. 1100; Protest of Chicago, R.I. P. Railway Co.,137 Okla. 186, 279 P. 319. The Legislature has a very wide discretion in making classifications when the legislation pertains to a peculiar subject matter such as is covered by this act. The duties and services therein called for must be performed by a class, or persons, having high professional training and experience. The members of this court are constantly called upon and required to study and consider our civil, probate, and appellate procedure statutes. Consequently, those members who have had two years of experience on this court should have thereby attained a better knowledge or qualification than others with less experience, and if the work will require four years to complete, those who have at least four more years to serve will be aided or further qualified in the performance of the service by the work they are required to do as members of this court. When the act in question was passed, three members of this court fell into class just entering upon a six-year term, three into a class having but two years of their terms to serve, and the class, to which the plaintiffs belong, having four years more to serve. The act in so classifying those authorized to perform the service cannot be said to be arbitrary.

The next objection to the act proposed by the defendants is that it violates section 55 of article 5 of the Constitution, which forbids the paying out of money, from the treasury of the state, except in pursuance of an appropriation by law, and which provision contains certain other details not material to this case. The defendants call our attention to the failure of the Legislature to make an appropriation for paying for the services of plaintiffs. The act provides a compensation for the services to be rendered and provides that the compensation shall be payable monthly. The argument of the Attorney General here seems to be that the decisions of the Supreme Court in the case of State ex rel. Telle v. Carter, 170 Okla. 50,39 P.2d 134; Battles v. Childers, 177 Okla. 589, 61 P.2d 253, and Edwards v. Carter, State Auditor, 167 Okla. 287, 29 P.2d 610, are incorrect and are too great an extension of the rule announced in the case of Riley v. Carter, 165 Okla. 262,25 P.2d 666. We decline to disturb the rule of law this court has announced in these well-considered cases. Decisions construing constitutional provisions should not be overruled, save for very weighty reasons. At the time the act in question was passed, this court had so construed the constitutional provision relied upon. The act shows a clear intent on the part of the Legislature to provide payment for the services imposed, and it might well have had in mind the decisions of this court the Attorney General now complains of.

The final argument of defendants is that the act was passed by the Legislature in violation of section 34 of article 5 of the Oklahoma Constitution, requiring that every bill shall be read on three different days in each House, and stating further requirements not urged in the instant case. The rule in this state is that an enrolled bill which has gone through the formalities prescribed by Coyle v. Smith, 28 Okla. 121,113 P. 944, affirmed by the Supreme Court of the United States in221 U.S. 559, 55 L. Ed. 853, 31 S. Ct. 688, cannot be impeached. The following rule is stated therein:

"When an enrolled bill has been signed by the Speaker of the House and by the President of the Senate respectively, in the presence of those bodies immediately after the bill has been read publicly at length, and the same has been approved by the Governor and deposited in the office of the Secretary of State, it is not competent to show from the journals of the House that the act so authenticated, approved, and deposited was not read on three different days in each House."

The question of whether or not these plaintiffs have performed the service as called for in the act, and as specifically set forth in their verified claim and verified petition, cannot be raised by respondents as a ground for denying their claims. The act does not require piecemeal work or a showing each month of the amount of the work performed as a condition precedent to receiving the monthly payment.

We are of the opinion that House Bill No. 239 is a constitutionally valid legislative enactment. The writ of mandamus is accordingly made permanent.

LINEBAUGH, C. J., and STEVENS, YANCEY, and WILHITE, JJ., concur. LUCAS, LACKEY, and WOODALL, JJ., dissent. WHEATLEY, J., absent.

The following members of the Bar served as Special Justices: Richard L. Wheatley, Vinita; W.A. Lackey, McAlester; O.A. Cargill, Oklahoma City; A.J. Stevens, Alva; Person E. Woodall, Norman; Chas. L. Yancey, Tulsa; D.H. Linebaugh, Muskogee; C.O. Lucas, Holdenville; Sam L. Wilhite, Anadarko.