Wimberly v. Deacon

This is an action in the nature of quo warranto brought to settle conflicting claims to a membership on the Board of Regents of the University of Oklahoma. We have assumed original jurisdiction because of the public nature of the question involved.

Petitioner, Harrington Wimberly, alleges that he is the rightful holder of the office, that respondent, Erl Deacon, also makes claim thereto, and that as a result confusion and uncertainty exist as to the actual membership of the board, all to the detriment of the University of Oklahoma. He prays that the rightful holder of the office be judicially determined. Respondent, Erl Deacon, by answer, asserts that he is the lawful holder of the office and joins with petitioner in requesting a determination of the controversy.

The facts are not in dispute. On March 23, 1942, C.O. Hunt, who then held a commission as a reserve officer in the Army of the United States, but who was not then on active duty, was appointed a member of the Board of Regents of the University of Oklahoma for a term which would ordinarily have expired March 23, 1949. On or about June 1, 1942, he was ordered into active military service, and, without resigning from his state office, entered upon military duty as a commissioned officer. On August 17, 1942, the then Governor of Oklahoma, assuming that a vacancy existed on said board by reason of Hunt's entry into active military service, appointed respondent to membership thereon under the authority to fill vacancies on said board given him by 70 O. S. 1941 § 1241. Respondent qualified and assumed the duties of the office. On June 25, 1943, however, Hunt filed his written resignation with the then Governor (successor to the Governor who had appointed respondent), who thereupon appointed petitioner to said office. Petitioner qualified and was received by the Board of Regents as a member thereof at its regular meeting on July 14, 1943.

It will thus be seen that the question of whether petitioner or respondent is entitled to the office depends upon whether Hunt, by entering into active military duty as a commissioned officer in the Army of the United States, thereby vacated his civil office.

Article 2, sec. 12 of our Constitution, provides:

"No member of Congress from this State, or person holding any office of trust or profit under the laws of any other State, or of the United States, shall hold any office of trust or profit under the laws of this State."

Respondent contends (1) that a person on active duty as a commissioned officer in the Army of the United States is the holder of an office of trust and profit under the laws of the United States within the purview of said constitutional provision, (2) that the office of member of the Board of Regents of the University of Oklahoma is an office of trust or profit under the laws of this state within the purview of said constitutional provision, and (3) that under said constitutional provision the same person may not hold both offices at the same time, and that upon Hunt's entry into active military duty his civil office immediately became vacant.

On the other hand, petitioner contends that a reserve officer called into temporary active duty, and who intends to return to civil life upon the cessation of hostilities, is not the holder of an office of trust or profit under the laws of the United States within the purview of said constitutional provision; that membership on the Board of Regents is not an office of trust or profit under the laws of this state within the purview of said constitutional provision; that there is no common-law incombatibility between serving as a reserve officer on temporary active duty in the Army of the United States and membership on the Board of Regents; and that, therefore, no vacancy existed at the time of respondent's appointment, and that such appointment was without authority and void.

At the outset of the consideration of this case, we point out that we are not, and must not be, concerned with the policy of the law as expressed in the constitutional provision. Only a question of law is presented, and the discussion of patriotic motives of public officers in our hour of national peril cannot and must not swerve us from correctly determining that question. If the giving up of a public office and its emoluments is necessary for the common good of all, such individual hardships may not be greater than the sacrifices of those countless thousands in private employment who are called into military service and who count not the cost to them in money, position, pain, suffering, or sacrifice. The Constitution means the same in war as in peace.

Before discussing the three propositions argued by the parties, the meaning of this constitutional provision, we will briefly refer to some well-recognized and applicable rules of construction that furnish a safe guide in connection with the interpretation and enforcement of constitutional provisions.

Those who frame statutes and constitutional provisions must always be presumed to be, and they generally are in fact, familiar with settled rules of statutory and constitutional construction, and they have a right to act on such rules and to expect the courts to follow them in construing and enforcing the same. And in order that there may be stability and certainty in the interpretation and enforcement of such provisions, as they are understood by those who frame them, the courts should scrupulously apply and follow such rules. To do otherwise is to run the risk of going contrary to the true meaning of such provisions, and to amend the statutes or Constitution by judicial fiat.

The first rule, and the one to which all other rules are subordinate, is that the meaning of constitutional provisions, as understood by those who framed and adopted the Constitution, is to be ascertained and given effect. Boswell v. State,181 Okla. 435, 74 P.2d 940; 12 C. J. 700; 6 Rawle C. L. 52; 16 C. J. S. 51; 11 Am. Jur. 674.

Another rule is that words appearing in the Constitution are to be given their plain, natural, and ordinary meaning, and no hidden meaning should be looked for by the courts. Pawnee County Excise Board v. Kurn, 187 Okla. 110, 101 P.2d 614; 12 C. J. 703; 6 Rawle C. L. 5 2; 16 C.J.S. 5 6; 11 Am. Jur. 681.

Another rule is that when provisions have been adopted into the Constitution of a state which are identical with or similar to those of other states, it will be presumed that the framers of the Constitution were conversant with, and designed to adopt, the construction previously placed on such provision in other states. State ex rel. Tharel v. Board of Com'rs of Creek County, 188 Okla. 184,107 P.2d 542; 12 C. J. 717; 16 C.J.S. 76; 11 Am. Jur. 685. The reason for this rule is that, if it was intended to exclude the previous construction, the legal presumption is that the terms of the provision would be so changed as to effect that intent. McGrew v. Missouri Pac. R. Co., 230 Mo. 496, 132 S.W. 1076.

Constitutions are not made to mean one thing at one time and another at some subsequent time when the circumstances may have changed so as to make a different rule in the case seem desirable. A principal benefit expected from written constitutions would be lost if this were so. Cooley, Const. Lim. (8th Ed.) vol. 1, p. 124; 11 Am. Jur. 659. The meaning of the Constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it. South Carolina v. United States, 199 U.S. 437, 50 L. Ed. 261, 26 S. Ct. 110, 4 Ann. Cas. 737; Cooley, Const. Lim. (8th Ed.) vol. 1, p. 124; 11 Am. Jur. 659; 12 C. J. 718. This does not mean, however, that constitutional provisions, such as the due process clause, couched in general terms, may not have such a degree of elasticity as to make them applicable to new conditions not in existence at the time of their adoption, and hence not thought of by those who framed and adopted them. Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114, 54 A. L. R. 1016; 11 Am. Jur. 660.

Bearing in mind the terms of the quoted constitutional provision and these rules of construction, we now proceed to dispose of the three questions argued by the parties.

1. Is a reserve officer in the Army of the United States, after being called into active duty, the holder of an office of trust or profit under the laws of the United States within the meaning of the quoted constitutional provisions? We think so. Members of the Officers Reserve Corps are reserve officers and are commissioned in the Army of the United States. 48 Stat. 154, 10 U.S.C. § 355 a. The President is authorized to order such reserve officers into active military service for the period of the war in which we are now engaged and for six months thereafter. 54 So. 858; 55 So. 628, 50 U.S.C. § 401; 55 So. 799, 800, 50 U.S.C. § 731, 732. They are paid a stated salary fixed by law. Although the record is silent thereon, we assume that Hunt was ordered into active military service for the duration of the war and for a period of not to exceed six months thereafter. It is provided that "while not on active duty," such officers are deemed not to hold "office of trust or profit" under the government of the United States. 48 Stat. 154, 10 U.S.C. § 372. This provision seems to suggest, however, that from the viewpoint of the federal government, at least, such officers, when they are on active duty, are deemed to be persons holding an office of trust or profit under the government of the United States. Commonwealth v. Smith (1942)343 Pa. 446, 23 A.2d 440.

While this question is one of first impression in this state, it has been passed on many times by courts of other states having similar constitutional provisions. See annotations in 26 A. L. R. 142; 132 A. L. R. 254; 140 A. L. R. 1499; 141 A. L. R. 1525; 142 A. L. R. 1517; 143 A. L. R. 1528; and 144 A. L. R. 1513. Until 1940 the authorities seem to have been unanimous to the effect that a person holding a military commission and engaged in active military duty held an office of trust and profit under the laws of the United States within the meaning of constitutional or statutory provisions, similar to ours, prohibiting dual office holding. 26 A. L. R. 142, note; People v. Drake (1899) 43 A.D. 325, 60 N.Y.S. 309; Oliver v. Jersey City (1899) 63 N.J.L. 96, 42 A. 782; Kerr v. Jones (1862) 19 Ind. 351; Taylor v. Commonwealth (1830) 26 Ky. 401; State v. Sadler (1899) 25 Nev. 131, 58 P. 284; Chisholm v. Coleman (1869) 43 Ala. 204, 94 Am. Dec. 677; Lowe v. State (1918) 83 Tex.Crim. Rep. 134, 201 S.W. 986; Fekete v. East St. Louis (1924) 315 Ill. 58, 145 N.E. 692, 40 A. L. R. 650. The military offices involved in most of the above cases were held in volunteer regiments, created only for the duration of the Civil or Spanish-American Wars, and not in the permanent or regular army. The Fekete Case, above, arose out of the first World War.

In the cases decided since 1939, however, there has been a division of opinion on the question.

The Pennsylvania court, in the case of Commonwealth v. Smith, above, under a constitutional provision similar to our own, held that a reserve officer in the army of the United States, when called into active service, became the holder of an office of profit and trust under the United States, and vacated a state civil office theretofore held. The Ohio court, in the case of State ex rel. Cooper v. Roth (1942) 140 Ohio State, 377, 44 N.E.2d 456, held that entry into military duty through selective service constitutes "other public employment" under a statute prohibiting certain civil officers from "holding any other public office or employment," and that a soldier, upon entry into military service thereby vacated his civil office of city councilman. And the Arizona court held that a state superintendent of health, when inducted into the army of the United States as a major, became the holder of an incompatible office under the common law and that his induction, ipso facto, vacated his civil office. Perkins v. Manning (1942) 59 Ariz. 60, 122 P.2d 857.

On the other hand, the courts of several of the other states have recently held that constitutional and statutory provisions against dual office holding do not apply to officers in the Army of the United States called to temporary active duty. State ex rel. Thomas v. Wysong (1943) (W. Va.) 24 S.E.2d 463; Critchlow v. Monson (1942) 102 Utah, 378, 131 P.2d 794; State ex rel. McGaughey v. Grayston (1942) 349 Mo. 700,163 S.W.2d 335; McCoy v. Board of Supervisors of Los Angeles County (1941)18 Cal. 2d 193, 114 P.2d 569; Carpenter v. Sheppard (1940) 135 Tex. 413,145 S.W.2d 562; Kennedy v. Cook (1940) 285 Ky. 9,146 S.W.2d 56; Re Advisory Opinion to Governor (1942)150 Fla. 556, 8 So. 2d 26, 140 A. L. R. 1481; 9 So. 2d 172, 140 A. L. R. 1492; Gullickson v. Mitchell, 113 Mont. 359,126 P.2d 1106; City of Lynchburg v. Suttenfield, (1941) 177 Va. 212,13 S.E.2d 323.

Some of these cases may be distinguished. In the Texas case, the civil officer was a member of the National Guard who had been called into active service for one year's training. The court pointed out that the Constitution of Texas had been amended to exempt members of the National Guard from its provisions against dual office holding and placed its decision on that ground. It did not criticize or overrule the earlier Texas decision above cited. In the Kentucky case the civil officer was likewise a national guardsman who had been called for one year's training. The court said that he still acted under the commission issued to him by the Governor of Kentucky and that therefore he did not hold an office under the United States. In the Florida case the court held that under a constitutional provision against dual office holding, but exempting militiamen from its provisions, a reserve officer called to active duty did not thereby vacate his civil office, because "when the State Militia was federalized by Act of Congress and called into active service on behalf of the Federal Government, the exemption placed on it was not withdrawn." In the Virginia case, where the civil officer was an officer in the National Guard, the constitutional provision expressly provided that the inhibition therein contained against dual office holding should not apply to militia officers "because of recompense they may receive from the United States when called out into actual duty." And in Montana, where the Constitution provided that certain civil officers should not "be eligible to, or hold any other public office," the court held that the inhibition extended only to eligibility to the second office (that of a commissioned officer in the army) and that whether the civil officer was eligible to the second office was a question for the federal authorities. The authorities are divided on this point.

However, it would seem that the cases from West Virginia, Utah, Missouri, and California may not be distinguished, and are contrary to the uniform holding of the courts of other states prior to 1940. These cases, without discussing or giving effect to the rules of construction, above, hold that constitutional provisions similar to the quoted provision of our Constitution were not intended to apply to commissioned officers temporarily serving in the armed forces of the United States during time of war. The reasoning behind such cases is that the Constitution should not be interpreted in a manner that will discourage public officers from rendering military service.

Were we at liberty to construe the Constitution as we pleased to effect whatever public policy we thought desirable, these last-cited cases would have weight. But, as above stated, and because of the rules of construction, above, we are not at liberty to do so. The question, therefore, is not one of policy for us to promulgate, but rather, what did the framers of our Constitution and those who adopted it in 1907 intend? Did they intend that the term "office of trust or profit under the laws of the United States" should not include commissioned officers of the Army of the United States on active duty?

As we have seen, at the time of the adoption of our Constitution in 1907, constitutional provisions of other states, similar to the quoted provision, had been uniformly construed to apply to military officers engaged in active service even though such officers were not professional soldiers or members of the permanent army. No doubt the purpose of such provision is to protect the public interest so that an officer holding an office of profit or trust under the state laws may give his undivided attention to the duties of his office without being hampered by an official allegiance to any other state or the United States.

Furthermore, the provision seems plain to us. The only requirement is that the federal office be one of "trust or profit." No distinction is made between civil and military officers, or between military officers in the regular army and those in the army called for the duration of any war in which the country may be engaged. To reach the conclusion that by the language used such an office was not intended is to indulge in speculation and to hunt for some hidden meaning not disclosed by the language used. This we should not do, as it might result in an amendment of the Constitution by judicial decree.

We conclude, therefore, that the framers of our Constitution used the words "office of trust or profit" according to their established meaning in 1907, and that such term includes a reserve officer engaged in active military duty in the Army of the United States.

It is, therefore, unnecessary to determine whether the two offices are incompatible under the common law.

2. The statutes provide that the Board of Regents "shall have the custody of the books, records, buildings and all other property of the University" (70 O. S. 1941 § 1242), and that the board shall "enact rules for the government of the University and all its branches," and shall have power to elect and remove the president, professors, instructors, officers, and employees of the University. 70 O. S. 1941 § 1244. It is apparent that membership on the Board of Regents is an office of trust, and that the board exercises an important part of the sovereign power of the state. See 42 Am. Jur. 882, 885; State v. Sowards, 64 Okla. Crim. 430, 82 P.2d 324; Dickson v. People,17 Ill. 191; State v. Jones, 143 Tenn. 575, 224 S.W. 1041 (school director). It is not merely an advisory office as in Patton v. Miller, 190 Ga. 123, 8 S.E.2d 757, relied on by petitioner. It follows that a member of the Board of Regents of the University holds an office of trust under the laws of this state. We need not determine whether he also holds an office of profit.

3. Did Hunt's membership on the Board of Regents ipso facto become vacant by his entry upon active military duty as a commissioned officer, without the necessity of a judicial determination of the fact that a vacancy existed? Under the overwhelming weight of authority, this question should be answered in the affirmative. As pointed out above, similar constitutional provisions are found in many of the other states. In others there are statutes or city ordinances or charters to the same effect.

In Mechem on Public Officers (1889) it is said:

"Where, however, it is the holding of two offices at the same time which is forbidden by the Constitution or the statutes, a statutory incompatibility is created, similar in its effect to that of the common law, and, as in the case of the latter, it is well settled that the acceptance of a second office of the kind prohibited, operates ipso facto to absolutely vacate the first. "No judicial determination is therefore necessary to declare the vacancy of the first, but the moment he accepts the new office the old one becomes vacant." § 429.

See, also, to the same effect, subject note in 86 Am. St. Rep. 578, published 1902.

Our constitutional provision is of the type mentioned.

As pointed out above, the framers of our Constitution and the people who adopted it must be deemed to have been familiar with these authorities (in general use in 1907) and the rules of law there announced. And since they used no language indicating an intention to exclude such construction, the legal presumption is indulged that they intended to adopt such construction.

Furthermore, the recent authorities are in accord with those above cited. 42 Am. Jur. 940, 941, 942; 22 R.C.L. 418, 419; 46 C. J. 947, 948; subject note in 100 A.L.R. 1164 (common law) and 1170 (Constitution and statute).

That constitutional provisions like section 12 are self-executing and fully operative is shown by the authorities just cited, and was specifically held by the Pennsylvania Court in Commonwealth v. Smith, above. And it is held that prohibitive and restrictive constitutional provisions, such as section 12, are, as a general rule, self-executing. Ex parte McNaught, 23 Okla. 285, 100 P. 27; 12 C. J. 731; 16 C.J.S. 101; 6 R.C. L. 62; 11 Am. Jur. 695.

The very purpose of the rule of ipso facto vacation by the acceptance of a prohibited office is to prevent confusion and uncertainty. In 42 Am. Jur. 941, it is said:

"The rule that acceptance of a second office operates to vacate one already held when not declared by positive provision of law seems to be based on a presumption of an election between the two offices as evidenced by the acceptance of the second. It is a certain and reliable rule, and one that is indispensable for the protection of the public. For the public has a right to know, in the case of attempted incompatible office holding, which office is held and which surrendered, and it should not be left to chance or to the uncertain whim of the office holder to determine. . . ."

While, as stated in 42 Am. Jur. 940, "if the former occupant refuses to vacate the office, his successor may be compelled to take the necessary legal steps to oust him," yet the decision must relate to the effect of the prior acts, and the decision as to who holds legal title to the office would relate back to the happening of the prior events. People ex rel. Fleming v. Shorb, 100 Cal. 537, 35 P. 163.

The petitioner argues that the rule stated in Webb v. City of Hugo, 169 Okla. 438, 37 P.2d 621, is applicable. But that case has to do with failure to give personal attention to the duties of an office as required by section 11, art. 2 of the Constitution. Such constitutional provisions are generally held not to work an automatic vacation of the office, as is the case under section 12, but to merely afford a ground for removal. Young v. Town of Morris, 47 Okla. 743, 150 P. 684, Ann. Cas. 1918B, 450.

The petitioner also relies upon Wentz v. Thomas,159 Okla. 124, 15 P.2d 65, as authority for the proposition that the Governor is without authority to declare a vacancy without special authority of law. That case deals with power of removal under specific statutory authority. It is not in point here, since the constitutional provision declares the vacancy and it is for the Governor to fill the vacancy the moment it is created.

To sustain the contention of petitioner would be to subordinate the welfare of the state to the welfare of the officer. The Constitution was intended to have the opposite effect. Under the rule contended for by petitioner, five members of this court could, without resigning, become commissioned officers in the army, could be sent overseas so that it would be physically impossible for them to perform their judicial duties, and the work of the court would have to cease until a judicial determination of whether a vacancy exists was had or until they return, or until their terms of office expire and their successors are elected. The same may be said of the other state officers, the Criminal Court of Appeals, Highway Commission, Tax Commission, Board of Equalization, the various Boards of Regents and other boards and commissions, and the officers and boards that have control of the affairs of counties, school districts, cities and towns. The effect would be harmful to civil government. And, after all, civil government must go on at home while the war is being fought.

It is the duty of the Governor to "cause the laws of the state to be faithfully executed." Const. sec. 8, art. 6. Under the authorities cited above, the office was vacated by Hunt when he became a commissioned officer of the army on active duty. It was then within the power of the Governor to immediately fill the vacancy without awaiting a judicial determination of the existence of a vacancy. 70 O. S. 1941 § 1241; 42 Am. Jur. 940 § 78.

It follows that the respondent must be, and he is hereby, adjudged to be the holder of legal title to, and entitled to exercise the duties and powers of, said office.

Mr. Justice RILEY having certified his disqualification, Hon. CECIL CHAM-BERLIN was appointed Justice in his stead.

CORN, C.J., and OSBORN, BAYLESS, and DAVISON, JJ., concur. GIBSON, V.C.J., and WELCH and ARNOLD, JJ., and CHAMBERLIN, Special Justice, dissent.