Board of Com'rs of Muskogee County v. Hart

• Decision Date: 14 November 1911
• Citation: 119 P. 132,29 Okla. 693,1911 OK 358
• Parties: BOARD OF COM'RS OF MUSKOGEE COUNTY v. HART.
• Court: Oklahoma Supreme Court

119 P. 132

29 Okla. 693, 1911 OK 358

BOARD OF COM'RS OF MUSKOGEE COUNTY v. HART.

Supreme Court of Oklahoma

November 14, 1911

Syllabus by the Court.

A deputy, appointed by an officer to hold during the pleasure of such principal, does not hold for a term, within the meaning of section 10, art. 23, of the Constitution of this state, prohibiting the change of the salary or emoluments of any public officer after his election or appointment, or during his "term of office," except by operation of law, enacted prior to such election or appointment.

Error from Superior Court, Muskogee County; Farrar L. McCain Judge.

Action between the Board of Commissioners of Muskogee County and Charles E. Hart. From the judgment, the Board of Commissioners brings error. Affirmed.

W. E Disney, for plaintiff in error.

Charles A. Moon, for defendant in error.

WILLIAMS J.

This proceeding in error is to review the judgment of the trial court, holding that section 16, c. 69, Session Laws 1910, as amended by section 1, c. 56, Session Laws 1911, entitled "An act amending section 16 of an act entitled 'An act relating to certain county and district officers,' chapter 69, of Session Laws 1910, repealing all laws in conflict," wherein the compensation of certain deputies was increased, applied to deputies then in office who held not for any specified time or defined term, and that it was not repugnant to section 10 of article 23 of the Constitution, which is in hæc verba: "Except wherein otherwise provided in this Constitution, in no case shall the salary or emoluments of any public official be changed after his election or appointment, or during his term of office unless by operation of law enacted prior to such election or appointment; nor shall the term of any public official be extended beyond the period for which he was elected or appointed: Provided, That all officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified."

Section 3, art. 12, of the Constitution of South Dakota (1889) provides: "The Legislature shall never grant any extra compensation to any public officer, employé, agent or contractor after the services shall have been rendered or the contract entered into, nor authorize the payment, of any claims or part thereof created against the state, under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts shall be null and void; nor shall the compensation of any public officer be increased or diminished during his term of office; Provided, however, that the Legislature may make appropriations for expenditures incurred in suppressing or repelling invasion."

In Somers v. State, 5 S. D. 321, 58 N.W. 804, Id., 5 S.D. 585, 59 N.W. 963, it was held: "A deputy, appointed by an officer to hold during the pleasure of such principal, does not hold for a 'term,' within the meaning of section 3, art. 12, of the Constitution, prohibiting any change in the compensation of any public officer 'during his term of office."'

Section 8, art. 14, of the Constitution of Missouri (1875) provides: "The compensation or fees of no state, county or municipal officer shall be increased during his term of office; nor shall the term of any office be extended for a longer period than that for which such officer was elected or appointed."

In State ex rel. Kane v. Johnson, Comptroller (Mo.) 25 S.W. 855, section 1 of the syllabus is as follows: "A municipal officer, subject to removal at the pleasure of the council, is not an officer, within Const. art. 14, § 8, prohibiting an increase in the salary of any officer during his term of office." In the opinion it is said: "Counsel for the relator concede in their brief that he is a public officer, within the meaning of the general definition of a public officer, and that he performs public duties, and offices and functions of a public character; but they contend that he is not an officer, within the meaning of the section of the Constitution quoted. It will be observed that this section of the Constitution only embraces within its provisions officers who are elected or appointed for some specific or definite time, and that it has no application whatever to the case in hand, when the relator's term of office is not fixed by any law or ordinance, and when he simply holds at the pleasure of the appointing power. This is manifest from the fact that it also provides that the term of office shall not be extended for a longer period than that for which such officer was elected or appointed. The relator was not elected, nor was he appointed, for any definite time." On a rehearing, the court adhered to its former decision. State ex rel. Kane v. Johnson, 123 Mo. 43, 27 S.W. 339.

Article 4; section 7, par. 11, of the Constitution of New Jersey (1844) provides: "The Legislature shall not pass private, local or special laws in any of the following enumerated cases; that is to say: *** Creating, increasing or decreasing the percentage or allowance of public officers during the term for which said officers were elected or appointed."

In Gibbs v. Morgan, 39 N. J. Eq. 126, it is said: "By the act of 1874, entitled 'An act to regulate the salary of the clerk of the county of Camden' (P. L. of 1874, p 280), it was provided that the clerk of Camden county shall receive from the county, in lieu of fees, for his services as...