Bond v. Phelps

• Decision Date: 30 March 1948
• Docket Number: 33240.
• Citation: 191 P.2d 938,200 Okla. 70,1948 OK 76
• Parties: BOND et al. v. PHELPS et al.
• Court: Oklahoma Supreme Court

191 P.2d 938

200 Okla. 70, 1948 OK 76

BOND et al. v. PHELPS et al.

No. 33240.

Supreme Court of Oklahoma

March 30, 1948

Original proceedings by Reford Bond and others against Roger Phelps State Budget Director, A.S.J. Shaw, State Auditor, and John Conner, State Treasurer, to compel the defendants to allow and pay the salary claims of plaintiffs.

Writ issued.

RILEY Acting C.J., BRANSON, Acting V.C.J., and POWELL, Special Justice, dissenting.

Syllabus by the Court.

1. A statute imposing or providing for new duties or services to be performed by a public official, which new duties or services are incident to or germane to his office, and where such act provides additional compensation therefor, violates section 10, article 23, of the Oklahoma Constitution prohibiting the Legislature from changing the salary or emoluments of a public official during his term of office, but where the new duties or services so provided in the act are foreign to or beyond the scope or range of and not germane to the duties of the office, such statute does not violate such section.

2. In passing upon the constitutionality of an act of the Legislature the courts may not question or inquire into either the wisdom or motive of the lawmaking body.

3. Duties imposed upon members of the State Corporation Commission by the Legislature which consist of compiling and annotating all the oil and gas laws of Oklahoma and the general orders, rules and regulations adopted pursuant thereto are non-germane to the duties of such office, and section 10, article 23 of the Constitution does not prohibit the payment of additional compensation for such duties to Commissioners who are incumbent at the effective date of such act.

4. The constitutional prohibition of more than one subject in an act of the Legislature does not impose any limitation upon the comprehensiveness of the subject and the act may deal with officials both as to duties which are germane and are non-germane to the office held by them, without comprehending more than one subject.

Cobb, Hill & Godfrey, Houston Bus Hill, John Barry, Richardson, Shartel, Cochran & Pruet and Earl Pruet, all of Oklahoma City, for plaintiffs.

Mac Q. Williamson, Atty.Gen., and Fred Hansen, First Asst. Atty. Gen., for defendants.

Donald Campbell and Geo. W. Cunningham, both of Tulsa, and Vernon Roberts, of Ada, and W. T. Anglin, of Holdenville, and Forrest M. Darrough, of Tulsa, amici curiae.

STAMPER Special Justice.

This is an original action in this Court wherein plaintiffs, who are members of the Corporation Commission of Oklahoma, seek an order in the nature of mandamus directing the defendants the State Budget Director, the State Auditor and the State Treasurer, to allow and pay the claims of plaintiffs for services performed by them during the month of July, 1947, in compliance with Sections 1 to 3 inclusive of Enrolled House Bill No. 172 of the 1947 Legislature, 52 Okl.St.Ann. §§ 451-453. The Act purported to make, as an elective duty of the members of the Corporation Commission, the preparation of an annotated compilation of all the oil and gas laws of Oklahoma and the general orders, rules and regulations adopted pursuant thereto by the Corporation Commission of Oklahoma, and provided that such additional elective duties of the Commissioners should be performed so as not to interfere with the regular official duties of such Commissioners. The Commissioners have each elected to perform these additional duties and filed their claims with defendants for extra compensation at the rate of $2500.00 per annum as provided by the Legislature.

Defendants refused or failed to allow plaintiffs' claims and plaintiffs commenced this action.

The Attorney General urges for the defendants that the Act is void in so far as it applies to the Commissioners now in office, by reason of Section 10, Article 23 of the Constitution, which provides as follows:

'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. * * *'

The legislative acts in question are:

'Section 1. Inasmuch as the laws of the State of Oklahoma relating to oil and gas and the rules and regulations promulgated by the Corporation Commission pursuant thereto, have never been compiled and annotated, it shall be the duty of the members of the Corporation Commission of Oklahoma to prepare, in such manner as they deem proper, an annotated compilation of all the oil and gas laws of Oklahoma and the general orders, rules and regulations adopted pursuant thereto by the Corporation Commission of Oklahoma; said compilation and annotations to be supplemented by proper supplementary notes. Same shall be filed in the State Library as a public record, and as such shall be subject to inspection by the public. Said annotated compilation shall be published and shall be distributed free to the persons interested therein, and shall be from time to time supplemented so as to include any changes occasioned either by legislative enactment, judicial interpretation, or orders issued by the Corporation Commission; provided further that before said Commissioners shall be authorized or required to perform the service defined by this Act, same to be performed so as not to interfere with their regular official duties, they shall each file a certificate in the office of the Secretary of State setting forth their willingness to perform said service.

'Section 2. Each of said members of the Corporation Commission shall receive as compensation for the service required by this Act the sum of Twenty-Five Hundred Dollars ($2500.00) annually, payable monthly; such sums to be paid from the Conservation Fund, until such time as said compilation and annotations have been completed or until such time as an act of the Legislature of this State providing for an equivalent increase in pay out of the general revenue funds shall be effective as to each member of the Corporation Commission, whichever time is shorter.

'Section 3. The cost of publishing the annotated compilation provided for herein shall be paid from the Conservation Fund.'

A similar question was before this Court in the case of Phelps et al. v. Childers, State Auditor et al., 184 Okl. 421, 89 P.2d 782, 787. In the Phelps case, the Court had under consideration a Statute very similar to the one here involved, providing that the Justices of the Supreme Court, elected at the general election in 1934, should compile certain procedural Statutes and annotate the same, fixing the compensation for such service at $2500.00 annually, payable monthly, requiring the work as and when completed to be filed in the State Library. Laws 1936-37, p. 33, 75 Okl.St.Ann. § 1 note. The Court there held that such new duties or services were foreign to or beyond the scope or range of and not germane to the duties of the office of Justice of the Supreme Court and the additional compensation provided therefore did not violate Section 10, Article 23 of the Constitution. The Court's opinion recited and defined the nongermane rule as follows:

'When a statute imposes duties or calls for the performance of service that is nongermane and beyond the scope of the duties of the office as the same existed prior to the enactment of the statute, the one holding such office may not be required to perform the nongermane duty or service and cannot be disturbed in the enjoyment of his office for his refusal to do so. Any other rule would permit the Legislature to drive an executive or judicial officer from office by passing a statute placing upon such officer nongermane duties or requiring nongermane service, and thereby permit the invasion of the very field Section 10, Art. 23 protects. The cases all hold that where the duties are nongermane and the officer accepts and agrees to perform the nongermane duty or service, the Act does not violate such a constitutional provision. See the Annotation to the A.L.R. Citations supra. * * *'

The non-germane rule is not the product of this Court, but has been announced and followed by many Courts in States having constitutional provisions similar to our own.

One of the most carefully considered opinions on the subject is that of Groesbeck, Governor, v. Fuller, Auditor General, 216 Mich. 243, 184 N.W. 870, 871, 21 A.L.R. 1249, by the Supreme Court of Michigan. In this case there was involved an act of the Legislature whereby a state administrative board was created. Pub. Acts 1921, No. 2. On this board were the Governor, Secretary of State, State Treasurer, Auditor General, Attorney General, State Highway Commissioner, and State Superintendent of Public Instruction. Their duties were to exercise general supervisory control over the functions and activities of all administrative departments, boards, commissions, officers of the state, and state institutions. In addition, they were to perform all of the duties theretofore vested in the State Budget Commission, the State Purchasing Agent, and also were given control of the system of state accounting. For these duties they were each to receive compensation at the rate of $2500.00 per year in addition to their salaries as heads of their respective departments. The Michigan Supreme Court in holding that the Constitution did not prohibit the payments of such compensation said:

'The authority of the Legislature to prescribe duties is and must be subject to limitation. The official cannot be required to perform all manner of public service at the will of the Legislature. * * *

'As has been said, the duty imposed must belong to the office; it must fall within...