Allison v. Massey

• Decision Date: 03 March 1925
• Docket Number: Case Number: 15007
• Citation: 235 P. 192,1925 OK 166,108 Okla. 140
• Parties: ALLISON v. MASSEY.
• Court: Oklahoma Supreme Court

1925 OK 166

235 P. 192

108 Okla. 140

ALLISON v. MASSEY.

Case Number: 15007

Supreme Court of Oklahoma

Decided: March 3, 1925

Syllabus

¶0 1. Counties--Tenure of Office.

A statute which provides that certain county and municipal officers shall be elected for a period of two years and "until their successors are elected and qualified" finds no inhibition in the Constitution of this state.

2. Same--County Commissioners.

Under chapter No. 203, Session Laws of Oklahoma 1917 (Comp. Stat. 1921, section 5735), members of the boards of county commissioners of the state are elected each two years, and when qualified hold office until their successors are elected and qualified, and under this provision that part of the term which on certain contingencies may be filled, which is designated in the statute as "until his successor is elected and qualified," is as much a part of the term of office as the two-year period specifically mentioned.

3. Same--Death of Commissioner Elect -- Holding Over by Incumbent.

Where a member of the board of county commissioners is duly elected as provided by law, but departs this life before he qualifies, and before the time arrives for his assuming the duties of the office to which he is elected, the term of the incumbent continues, and there is no authority of law for the Governor to appoint a successor to the person who died.

4. Same--Invalidity of Appointment.

Under the facts stated in syllabus No. 3, and under the facts in this case, there was no vacancy on the board of county commissioners from district No. 2 of Johnston county, within the meaning of sections 127 and 132, Comp. Stat. 1921, at the time defendant was appointed, and the appointment by the Governor, of appellant, did not give him the right to the office.

5. Officers--Injunction -- Interference with Officer by One Claiming Office.

A person lawfully holding a public office has a right to invoke the remedy of injunction to protect him from interference in the exercise of his functions as the holder of such office, against one who claims he has a right to such office. If the person who lays claim to the office already held by another sees fit to litigate his right thereto, he has his remedy at law. In the instant case the judgment of the trial court is affirmed.

Error from District Court, Johnston County; J. H. Linebaugh, Judge.

Injunction by Joe B. Massey against Ben Allison. Judgment for plaintiff, and defendant brings error. Affirmed.

Cornelius Hardy, George F. Short, Atty. Gen., and M. W. McKenzie, Asst. Atty. Gen., for plaintiff in error.

George Trice, Denver Davison, and Ratliff & Ratliff, for defendant in error.

BRANSON, V. C. J.

¶1 One T. O. Wagner was elected from district No. 2, as a member of the board of county commissioners of Johnston county at the November election, 1922. The defendant in error, Massey, was elected as a member of the board of county commissioners of said county, and from district No. 2 thereof, at the November election, 1920; subsequently he qualified and assumed the duties of his office the first Monday in July, 1921. The said T. O. Wagner would have assumed the duties of the office to which he was elected on the first Monday in July, 1923, but prior thereto and in March, 1923, without having qualified and without the time having arrived when he would assume the duties of the office to which he was elected, the said Wagner departed this life.

¶2 After the death of the said Wagner, the Governor, on the 8th day of May, 1923, undertook to exercise the power of appointment given him by law to fill vacancies on boards of county commissioners of the different counties of the state, and issued and delivered to the plaintiff in error, Ben Allison, a commission to become county commissioner of district No. 2, of Johnston county, for the term of office to which the said T. O. Wagner, deceased, had been elected. The said plaintiff in error did the acts necessary to qualify as a member of the board of county commissioners, and he and the defendant in error sat with the other two members of the board at one or more meetings in the month of July,1923; but the board of county commissioners recognized neither.

¶3 About the first of August, 1923, the said Massey filed a suit in the district court of Johnston county, setting up the fact that he had been on the date above mentioned a duly elected county commissioner from said district No. 2, and that the said Allison laid claim to the office and was interfering with him, Massey, in the performing of his official duties, and prayed for an injunction against the said Allison, enjoining him from interfering or molesting him, the said Massey, in the continuous performance of his duties as a member of the board of county commissioners of said county. A temporary restraining order was issued by the district judge, which remained in effect until the 8th of October, when the issues raised by the pleadings were tried, and on the 5th day of November, 1923, a perpetual injunction was granted, as prayed by the plaintiff, Massey. It is from this judgment that the said Allison prosecutes this appeal.

¶4 We shall consider only such assignments of error as we deem are necessary for proper determination of the merits of the cause.

¶5 Appellant contends in support of his position that the action was tantamount to the trial of the title to the office of county commissioner by an injunction proceeding, whereas it should be tried by a proceeding in the nature of quo warranto. As to this we deem it sufficient to say that in the allegations of Massey's petition he did not seek to obtain an office, but merely to prevent Allison from interfering with his performing the duties of the office he already held. Counsel in presenting this argument fail to distinguish between the remedy which an official has a right to invoke to protect himself in the exercise of his functions as a public officer, and the remedy necessary to be invoked to secure a public office alleged to be wrongfully held by another. That an injunction is a proper remedy in the former case, we think, is borne out by the authorities: 29 Cyc. 1416 (and cases cited in note thereto); Mechem on Public Officers, section 994; Brady et al. v. Sweetland et al., 13 Kan. 41; Guillotte v. Poincy (La.) 6 So. 507; Ewing v. Thompson, 43 Pa. 372; Kerr et al. v. Trego et al., 47 Pa. 292.

¶6 The main contention of the plaintiff in error, however, is that by reason of his being commissioned by the Governor he occupies the same position that T. O. Wagner would have occupied, with the same right to qualify on the first Monday in July, and become county commissioner from district No. 2, the same as the said Wagner could have done but for his death. Appellant says that by reason of that part of section 10, art. 23, of the Oklahoma Constitution, which reads:

"* * * Nor shall the term of any public official be extended beyond the period for which he was elected or appointed"

--the said Massey could not continue to hold office after the appellant had qualified. We do not think this section of the Constitution is susceptible of the construction contended for. This section of the Constitution is an inhibition against the Legislature of the state increasing either the salary of such a public official or extending the term for which he was elected after the election of such official, and nothing more. As to the right of the Legislature to increase or diminish the term of office of such public official as is herein involved, where the enactment is before the election of the officer, we find no inhibition in the Constitution, but, on the contrary, section 18 of art. 29 impliedly authorizes such changes. Said section provides:

"Until otherwise provided by law the terms, duties, powers, and qualifications, salaries and compensations, of all county and township officials, shall be as now provided for by the law of the territory of Oklahoma, for the like named officials."

¶7 The Legislature in 1917 enacted what is now section 5735, Comp. Stats. 1921:

"Sec. 5735. Terms of Officers. At each general election there shall be elected in each county, a county judge, a county attorney, a court clerk, a county clerk, a sheriff, a county treasurer, a county surveyor, a county superintendent of public instruction, a public weigher, and three county commissioners, who shall hold office for a term of two years, beginning, except those of the county judge, county treasurer, county superintendent of public instruction and the county commissioners, on the first Monday in January following their election, and until their successors are elected and qualified. The term of office of the county judge shall begin on the second Monday in January and that of county superintendent of public instruction, county treasurer and county commissioners shall begin on the first Monday in July following their election."

¶8 It must...