Beaty v. State

• Decision Date: 25 March 1913
• Citation: 130 P. 956,35 Okla. 677,1913 OK 201
• Parties: BEATY v. STATE EX REL. LEE.
• Court: Oklahoma Supreme Court

130 P. 956

35 Okla. 677, 1913 OK 201

BEATY v. STATE EX REL. LEE.

Supreme Court of Oklahoma

March 25, 1913

The office of clerk of the superior court is a county office.

Section 8 of the act of March 6, 1909 (sections 1965-1976, Comp. Laws 1909; chapter 14, art. 7, Sess. Laws 1909), in so far as it affects the term of the clerk of the superior court, is repealed by section 19 of the act of March 19, 1910 (chapter 69, Sess. Laws 1910 [Ex. Sess.] pp. 129, 143).

The laws in force in this state at the time of the holding of the election for county officers in November, 1912, provided for the election of the clerk of the superior court.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by the State of Oklahoma, on the relation of Harold Lee against James Beaty. Judgment for plaintiff, and defendant brings error. Affirmed.

Act March 6, 1909, Laws 1909, c. 14, art. 14, § 8, in so far as it affects the terms of the clerk of the superior court, is repealed by Act March 19, 1910, Laws 1910, Ex.Sess., c. 69, § 19.

Flynn Chambers, Lowe & Richardson, Harris & Nowlin, and Wm. H Zwick, all of Oklahoma City, for plaintiff in error.

G. A. Paul and Giddings & Giddings, all of Oklahoma City, for defendant in error.

WILLIAMS J.

The following questions are presented for our consideration:

(1) Is the office of the clerk of the superior court a county office?

(2) Was section 8 of the act of March 6, 1909, creating and establishing a county superior court for each county of the state having a population of 30,000 and a city therein of 8,000, and fixing the jurisdiction of said courts, for fixing the procedure, providing for judges of said courts, for the election, appointment, term of office, and compensation of said judges, providing for a clerk and stenographer, fixing compensation of the same, and declaring an emergency (chapter 24, art. 4, Comp. Laws 1909; chapter 14, art. 7, Sess. Laws 1909), in so far as it fixes the term of the clerk of the superior court, repealed by section 19 of the act of March 19, 1910 (chapter 69, Sess. Laws, pp. 129, 143), entitled "An act relating to certain county and district officers"?

(3) Did the law provide for the election of a clerk of the superior court at the general election held in November, 1912?

1. Section 8 of the act of March 6, 1909, creating superior courts (section 1972, Comp. Laws 1909), provides: "The judge of each of said courts shall appoint a clerk who shall serve until the second Monday in January, 1911, or until his successor is elected and qualified; and such clerk shall be elected at every similar election every fourth year thereafter. The duties of such clerk shall be the same relative to the said court as are provided for the clerk of the district court, and he shall give bond for the faithful performance of his duties as required of the clerk of the district court. The clerk of said court under and by direction of the judge thereof shall procure a seal for said court, which shall have engraved thereon the words 'Superior Court of ______ County, Oklahoma,' (naming county) and said clerk shall receive the same fees and be paid in the same manner as provided for the clerk of the district court." By this section it is intended that the clerk of said court was to be elected at the general election for county officers to be held in 1910. The act of March 19, 1910 (chapter 69, Sess. Laws 1910, pp. 129, 143), relates to certain county and district officers. Section 1 prescribes the fees to be charged by the clerk of the superior, county, and district courts; sections 2, 3, 4, 5, and 6, respectively, the fees to be charged by the county judge, register of deeds, county clerk, county treasurer, and sheriff. Section 7 of said act provides that the county shall in no case be responsible for any fees, salaries, or expenses for any county or subdivision officer, unless expressly allowed by law. Section 9 also provides that at each monthly meeting of the board of county commissioners the clerk of the district court, the clerk of the superior court, the clerk of the county court, the county clerk, and the register of deeds shall each file a verified report of the work of the preceding month showing the total fees charged in each case, and the total fees collected in each case, and shall pay all of such fees into the county treasury, and file duplicate receipts therefor with the county clerk. Section 10 provides for the rendering of an itemized and verified report of the work of the sheriff for the preceding month, etc. Section 11 permits the county commissioners in their discretion to allow a jailer. Section 12 relates to the appointment of deputy sheriffs. Section 13 prescribes the fees to be taxed and collected in all criminal cases to be known as county attorney's fees, which shall be paid into the county treasury. Section 28 fixes the salary of the judge of the superior court; section 29 the salary of the county judge and county attorney; section 30 that of the clerk of the district courts, superior courts, county clerk, county treasurer, and register of deeds. Section 36 prescribes the fees to be charged by justices of the peace, and section 38 the fees to be charged by notaries and section 39 that for bailiffs. The superior court, though its jurisdiction is confined to the limits of the county, is a part of the judicial department of the state, with practically the same functions as that of the district court, and the judge of said court has for that reason been held not to be a county officer. Chickasha Cotton Oil Co. v. Lamb & Tyner, 28 Okl. 275, 114 P. 333; State ex rel. West, Atty. Gen., v. Breckinridge, 126 P. 806.

Jefferson v. Toomer, 28 Okl. 658, 115 P. 793, was disposed of on the assumption that the clerk of the superior court was a county officer, as counsel for all parties in their briefs so treated it. The fact that the act creating superior courts provided for the judges of said courts to be elected at the time the county officers are elected did not of itself have the effect of making such office a county office, especially in view of the character of such office. The clerk of the district court, a court of equal rank, was specifically made by law a county officer. Said clerk and the clerk of the superior court in said act of March 19, 1910, are treated on a parity and in the same manner by the Legislature.

It is obvious that the Legislature has not only treated the clerk of the superior court as a county officer, but intended that it should be such. There being nothing in the character of his position that would overcome such legislative intention manifested by the history of this legislation, we conclude that the clerk of the superior court is a county officer. Section 19 of the act of March 19, 1910, provides that: "All county, township and district officers elected at the general election in the year 1910 enter upon the duties of their office on the second Monday in January, 1911, and shall hold until the first Monday, in January, 1913, and until their successors are elected and qualified; and thereafter the terms of all such officers shall be for two years and until their successors are elected and qualified. Provided that the county treasurer and superintendent of public instruction shall hold office until the first Monday in July, 1913, and thereafter their terms of office shall be for two years, and until their successors are elected and qualified." The terms of all county and township officers, including those elected at the time of the adoption of the Constitution, as well as those appointed under the provision of the laws extended in force in the state at the time of its erection, expired on the second Monday in January, 1911, and thereafter the terms of county officers and township officers were to be as provided by the laws of the territory of Oklahoma for like named officers, except as otherwise provided in the Constitution. Section 18, Schedule to the Constitution; section 382, Williams' Anno. Const. By section 2, art. 17, of the Constitution (section 320a, Williams' Anno. Const.), there was created, subject to change by the Legislature, in and for each organized county of this state, the offices of the judge of the county court, county attorney, clerk of the district court, county clerk, sheriff, county treasurer, register of deeds, county surveyor, superintendent of public instruction, three county commissioners, and such municipal township officers as were then provided for under the laws of the territory of Oklahoma, except as otherwise provided in the Constitution. Under the territory of Oklahoma each district court appointed its clerk which held office subject to the pleasure of the court. Organic Act May 2, 1890; section 9, Statutes of Oklahoma Territory 1893, p. 43; 26 Stat. 81, c. 182. The term for the district clerk, after the expiration of the term of such clerk elected at the time of the ratification of the Constitution, which expired on the second Monday in January, 1911, had not been fixed by law prior to the time of the passage of the act of March 19, 1910, relative to certain county and district officers. By section 19 of this act the terms of all county, township, and district officers were ultimately to be two years. The county treasurer and superintendent of public instruction were to hold until the first Monday in July, 1913. This provision was inserted evidently with a view that their terms might expire with the fiscal year, after which time their offices would regularly be for the term of two years. When two acts, one relating generally to a subject and another to a special part or class of such subject, unless they are absolutely irreconcilable, effect should be given, if possible, to both. This is a...