Carrico v. Couch

• Decision Date: 23 February 1915
• Docket Number: 3781.
• Citation: 146 P. 447,45 Okla. 672,1915 OK 115
• Parties: CARRICO ET AL. v. COUCH ET AL.
• Court: Oklahoma Supreme Court

146 P. 447

45 Okla. 672, 1915 OK 115

CARRICO ET AL. v. COUCH ET AL.

No. 3781.

Supreme Court of Oklahoma

February 23, 1915

Syllabus by the Court.

At the time of the adoption of the Constitution, the salary of the county superintendent of public instruction, elected at that time, being fixed at $1,200 per annum by section 18 of the Schedule, because of article 23, § 10, of the Constitution cannot be changed during his term of office, and was not increased to $1,800 by Act of March 24, 1909 (Laws 1909, c 11, art. 2).

Comp Laws 1909, § 8211, construed, and held, that the county superintendent of public instruction, as a member of the board of county examiners thereby created, is not entitled to receive for his services the sum of $3 per day.

Comp Laws 1909, § 7981, construed, and held, that the county superintendent of public instruction is entitled to $1 for visiting each school, and not that amount for visiting each room at places having two or more rooms.

Where this court has been properly invoked to revive a cause against the personal representative of a defendant in error, without the consent of such representative, and where, intermediate the application and our order of revivor, the year provided for in Rev. Laws 1910, § 5293 expires, held, that this court's delay in passing on the motion will not be allowed to prejudice the movant, and the order will be entered nunc pro tunc as of the date when the motion was filed.

Error from District Court, Oklahoma County; W. R. Taylor, Judge.

Action by George W. Carrico and others against Mary D. Couch and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Sam Hooker and C. W. Stringer, Co. Atty., both of Oklahoma City, for plaintiffs in error.

Grant Stanley, Stuart, Cruce & Gilbert, and Wright & Blinn, all of Oklahoma City, for defendants in error.

TURNER J.

On September 13, 1911, the board of county commissioners of Oklahoma county, sued Mary D. Couch, as principal, and Oscar Reagan and E. A. De Tarr, as sureties upon her official bond as county superintendent of public instruction in and for Oklahoma county. Several breaches of the bond were alleged, and judgment was prayed against defendants for $1,606.07. After answer filed in effect a general denial and a cross-petition to recover $2 overpaid, there was trial to the court upon this agreed statement of facts:

"First. It is agreed that Mary D. Couch was elected superintendent of public instruction for Oklahoma county on September 17, 1907, and that she qualified as such, took her oath of office, and entered into the discharge of the duties thereof on November 17, 1907.

Second. That during her term of office, as aforesaid, from November 17, 1907, to January 9, 1911, she drew from Oklahoma county the sum of $180 as a member of the examining board of Oklahoma county, and that she served 60 days as a member of said board of examiners.

Third. That, during her term of office as aforesaid, she drew $1,073.32 as her salary as superintendent, more than $100 per month, and that she drew no more than said salary would amount to provided she was allowed $1,800 a year from March 24, 1909, and that Oklahoma county, as shown by the federal census of 1907, was a county of more than 40,000 inhabitants, and was March 24, 1909, and now is, a county of more than 40,000 inhabitants.

Fourth. That during the years of 1908, 1909, and 1910, there were 109 separate schools, and 145 different rooms having separate teachers outside of cities of the first class in Oklahoma county; and that during the year of 1909 defendant Mary D. Couch received $118 for her services in visiting said schools; that during the year 1910 she received $186 for her services in visiting said schools; that during the school year of 1908-09 she received $12 for her services in visiting said schools; that during the school year 1909-10 she received for her services in visiting schools the sum of $145; that during the school year 1910-1911 up to January 9, 1911, she received the sum of $123 for her services in visiting schools. It is further agreed that the defendant Mary D. Couch received no pay for visiting any school not actually visited, nor visiting any school twice during any school year as interpreted by her--that is, a year commencing July 1st and ending June 30th of the following year--except that it is admitted by plaintiffs and defendants that in the schools of Capitol Hill, Harrah, Luther, and other places having two or more rooms in one school district, that she charged $1 for visiting each room.

Fifth. That during her term of office, and after March 24, 1909, she received for clerk hire, $268.75, and that amount was actually expended by her for clerical help in addition to the salary drawn by the clerk provided for by the law."

From which the court found:

First. That Mary D. Couch was elected superintendent of public instruction for Oklahoma county on September 17, 1907, and on the 17th day of September, 1907, qualified as such and entered into the discharge of the duties of superintendent of public instruction in and for said county.

Second. That during her term of office she drew from Oklahoma county $180 as a member of the examining board in and for said county to which she was not entitled, and that she and her bondsmen are responsible to Oklahoma county therefor.

Third. That after March 24, 1909, and before the expiration of her term of office, she drew from Oklahoma county $268.75 for clerk hire expended by her over and above the salary allowed by law for the clerk in the office of superintendent, and that she and her bondsmen are responsible to Oklahoma county for said $268.75.

Fourth. That, while she was county superintendent aforesaid, she drew from Oklahoma county $52 for services in visiting schools to which she was not entitled, inasmuch as she drew $1 per room for visiting said schools, where under the law she was only entitled to $1 per school, and in this she overdrew for visiting schools her account in the sum of $52, for which she and her bondsmen are liable.

Fifth. The court further finds that the said Mary D. Couch was entitled to the increase of salary allowed by the law of 1909, and that the $1,073.32 which the said Mary D. Couch drew from Oklahoma county for the increase in salary was permissible under the law, and she is entitled thereto.

Sixth. The court further finds that said Mary D. Couch, as superintendent, has overpaid the county $2 for examination fees, and that she is entitled to credit thereof for the same and on March 20, 1912, rendered and entered judgment in favor of plaintiff and against defendants for $498.75.

From that part of the judgment finding that she was entitled to the $1,073.32 increase in salary, plaintiffs appealed, and from the remainder thereof defendants prosecuted their cross-appeal, to this court.

By act of the Legislature of the territory of Oklahoma adopted prior to statehood, the office of county superintendent was created, and the salary of that office fixed...