Baskin v. State

• Decision Date: 02 January 1925
• Docket Number: 15077.
• Parties: BASKIN v. STATE ex rel. Short, Atty. Gen.
• Court: Oklahoma Supreme Court

232 P. 388

107 Okla. 272, 40 A.L.R. 941, 1925 OK 1

BASKIN v. STATE ex rel.

Short, Atty. Gen.

No. 15077.

Supreme Court of Oklahoma

January 2, 1925

Syllabus by the Court.

Section 23, art. 5, of the Constitution of this state, provides as follows: "No member of the Legislature shall * * * receive any appointment from the Governor, the Governor and Senate, or from the Legislature, during the term for which he had been elected, * * * " held that under this constitutional provision the disability of a member of the Legislature to hold office by virtue of appointment from the Governor does not cease until the expiration of the full period of time for which he was elected.

Appeal from District Court, Oklahoma County; A. S. Wells, Special Judge.

Proceedings by the State of Oklahoma on the relation of George F. Short Attorney General, against Charles H. Baskin. Judgment for relator, and defendant appeals. Affirmed.

Floyd A. Calvert, of Nowata, and Freeling, Hood & Howard and Warren K. Snyder, all of Oklahoma City, for plaintiff in error.

George F. Short, Atty. Gen., for defendant in error.

McNEILL C.J.

At the general election held in November, 1922, Charles W. Baskin was elected to the office of representative from Nowata county for a term of two years. Pursuant to such election he duly qualified and entered upon the discharge of his duties at the commencement of the session for the year 1923, and served in that capacity during the regular session of the Legislature ending March 31, 1923, and resigned from said office on the 7th of April, 1923.

In March, 1923, a vacancy occurred upon the Supreme Court caused by the death of the Chief Justice, John H. Pitchford and on the 7th day of April, 1923, the Governor appointed Hon. Charles W. Mason, who was District Judge of the Second Judicial District, to fill the vacancy on the Supreme Court. This created a vacancy in the District Court of the Second Judicial District, and on said 7th day of April, 1923, the Governor appointed the Hon. Charles H. Baskin to fill said vacancy. The Governor some time thereafter directed the Attorney General to institute this proceeding to test the qualifications of Baskin to hold said office. The case was instituted in Oklahoma county against Baskin, who entered his general appearance. The question for determination under the agreed facts is one of law. The trial court rendered judgment against Baskin, removing him from office, and from said judgment the said Baskin appealed to this court.

For reversal it is contended, the defendant having resigned as a member of the Legislature, he was not prohibited nor disqualified under section 23, art. 5, of the Constitution from holding said office. The case depends upon the construction of section 23, art. 5, of the Constitution of the State of Oklahoma, which reads as follows:

"No member of the Legislature shall, during the term for which he was elected, be appointed or elected to any office or commission in the state, which shall have been created, or the emoluments of which shall have been increased, during his term of office, nor shall any member receive any appointment from the Governor, the Governor and Senate, or from the Legislature, during the term for which he shall have been elected, nor shall any member, during the term for which he shall have been elected, or within two years thereafter, be interested, directly or indirectly, in any contract with the state, or any county or other subdivision thereof, authorized by law passed during the term for which he shall have been elected."

This section of the Constitution prohibits members of the Legislature from holding other offices, or receiving appointment to certain offices, or being interested in certain contracts. The portion of the section involved in this case reads as follows:

"Nor shall any member receive any appointment from the Governor, the Governor and Senate, or from the Legislature, during the term for which he shall have been elected."

To us, this language is plain and unambiguous, and the general rule of law is, when a statute or Constitution is plain and unambiguous, the court is not permitted to indulge in speculation concerning its meaning, nor whether it is the embodiment of great wisdom. A Constitution is intended to be framed in brief and precise language, and represent the will and wisdom of the constitutional convention, and that of the people who adopted it. This section of the Constitution is a part of the organic law of the state, and in plain language prohibits senators and representatives from holding any other office in the state "during the time for which he was elected." this language is too sweeping and too plain to be disregarded.

It is contended that, Hon. Charles H. Baskin having resigned his office as representative, the constitutional provision had no application to this case. With this we cannot agree. The time for which the defendant was elected was the entire constitutional term of two years, and whether he resigned during that time or not he was not permitted to hold any other office under the authority of this state during such entire term. The members of the constitutional convention in framing and drafting said section made no exceptions to the disqualifications of the members of the House or Senate from receiving certain appointments, or being elected to certain offices, or being interested in certain contracts, whether they resigned or not. It is not within the province of the court to read an exception in the Constitution which the framers thereof did not see fit to enact therein. This exact question was discussed in the case of State ex rel. Childs v. Sutton, 63 Minn. 147, 65 N.W. 262, 30 L. R. A. 630, 56 Am. St. Rep. 459.

A very able brief has been filed by the defendant referring to the case above cited and numerous other cases, and calling attention to the fact that the Constitution of Minnesota and various other states are different from the Oklahoma Constitution, as those Constitutions, while using similar language, contained the further provision that any vote for such appointment, and all votes given for any such member, or for any such office or appointment, shall be void. That provision of the section of the Constitution does not relate to the qualifications of the members, but makes his appointment void. Our Constitution contains no such provision. In other words, instead of making the appointment void, the appointment would be voidable, just the same as a person who is elected to office, who has taken and assumed the duties of the office, his official acts while in office would not be void. While a different rule might prevail where the...