Childers v. Paul
| Decision Date | 24 March 1936 |
| Docket Number | 26399. |
| Citation | 57 P.2d 872,177 Okla. 111,1936 OK 267 |
| Parties | CHILDERS, State Auditor, v. PAUL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 19, 1936.
Syllabus by the Court.
1. It is a cardinal rule that in the construction of statutes the legislative intent must govern, and, to arrive at the legislative intent, the entire act must be considered together with all other enactments upon the same subject, and when the intention of the Legislature can be gathered from the entire statute, words may be modified, altered, or supplied to give the statute the force and effect which the Legislature intended. Protest of Chicago, R.I. & P. Ry. Co. 137 Okl. 186, 279 P. 319.
2. Section 2 of chapter 184, Extra Session, Laws 1933 amendatory of section 13, chapter 91, Session Laws 1933, and prior enactments reserved to the commissioners of the land office the exclusive power of appointing and discharging the law and executive clerks to said commission.
3. A claim to the salary incident to the position of law and executive clerk to the commissioners of the land office cannot be maintained, where there has been neither a de jure nor a de facto appointment of claimant to such position.
Appeal from District Court, Oklahoma County; R. P. Hill, Judge.
Mandamus proceeding by Haskell Paul against C. C. Childers, state auditor. From a judgment awarding a peremptory writ of mandamus, the defendant appeals.
Reversed and remanded, with directions.
Mac Q Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for plaintiff in error.
Haskell Paul, of Pauls Valley, for defendant in error.
This action was instituted in the district court of Oklahoma county by Haskell Paul, as plaintiff, against C. C. Childers state auditor of the state of Oklahoma, as defendant, for a peremptory writ of mandamus requiring said defendant to audit and allow a salary claim of the plaintiff. The district court rendered judgment in favor of the plaintiff, and defendant appeals. The parties will hereinafter be referred to as they appear in the trial court.
The cause was submitted to the trial court upon the pleadings and agreed statement of facts. Therefore, as pointed out by Mr. Justice Riley in his special concurring opinion in the case of Wentz v. Thomas, 159 Okl. 124, loc. cit. page 135, 15 P.2d 65, 74:
It was stipulated by the parties that the following were the facts:
"1. That plaintiff was appointed to the position of 'Law and Executive Clerk' of the Commissioners of the Land Office by said Commissioners on May 16, 1933, and entered upon his duties as such on or about May 29, 1933; that said appointment as Law and Executive Clerk is the only one he has ever received.
2. That the copy of the minutes of the meeting of the Commissioners of the Land Office of April 17, 1935, which copy is attached hereto as Exhibit 'A,' is a true and correct copy of the minutes of said meeting in so far as same refers to plaintiff or to the issues involved in this case, and correctly sets forth and records the matters and files referred to and quoted therein. That no meeting of the Commissioners of the Land Office was held after said meeting and prior to May 1, 1935, on which date Orlando F. Sweet was appointed 'Law and Executive Clerk.'
3. That it is the duty of said Law and Executive Clerk to act as the legal advisor of the Commissioners of the Land Office and the several departments and officers thereof, and to represent them as their attorney either alone or in conjunction with the Attorney General, in all actions brought by or against said Commissioners, departments and officers.
4. That after the adoption of the resolution set forth in Exhibit 'A' of this stipulation and up to and including April 30, 1935, plaintiff continued to occupy the office room or space in the State Capitol Building theretofore and now used as the office of the Law and Executive Clerk of the Commissioners of the Land Office; that same was so occupied by plaintiff without any action being taken by said Commission either assenting or dissenting thereto; that during said period no services were rendered by plaintiff at the request of the Commissioners of the Land Office, but at the request of the Secretary to said Commissioners said plaintiff continued to occupy said office during said period and to perform duties such as are referred to in paragraph three of this stipulation."
By Exhibit A, attached to the above stipulation, it was further agreed that the plaintiff had filed his resignation with the commissioners of the land office to be effective May 1, 1935, but at a regular meeting of the commissioners held on April 17, 1935, this resignation was rejected and the plaintiff discharged, effective that date, by the commissioners of the land office.
From the above agreed statement it will be observed that the plaintiff bases his claim for salary for the period involved in controversy by virtue of a request made to him by the secretary to the commissioners of the land office; and that if he had any employment or any right to the salary attached to said position during said time that it is solely by virtue of the act of the secretary to the commissioners of the land office and not otherwise. Therefore, the controversey resolves itself into a question of whether the secretary to the commissioners of the land office had either any real or apparent authority to employ the plaintiff during the 13 days in which he remained in his former position. If the secretary had actual authority to make the appointment, then the plaintiff's tenure during the time was de jure, and he was entitled to his salary as a matter of course. On the other hand, if the secretary was lacking in actual authority to make such appointment, but had apparent authority to do so, then plaintiff would be entitled to the salary of such position as a de facto occupant thereof, in the absence of a de jure claimant, and would likewise be entitled to the salary incident to the position. Naylor v. Carter, 167 Okl. 125, 27 P.2d 843, 93 A.L.R. 254; Franks v. Ponca City, 170 Okl. 134, 38 P.2d 912. If, on the other hand, said secretary had neither actual nor apparent authority to fill said position, then upon plaintiff's discharge by the commissioners of the land office he was divested of any claim to the position, and had no right to claim salary thereafter. Orahood v. City & County of Denver, 41 Colo. 172, 91 P. 1116.
In arriving at a correct conclusion in the matter, it is necessary to briefly review the statutes creating and relating to the position of law and executive clerk to the commissioners of the land office. We find said position was created, along with other positions in various state departments, by House Bill No. 315 of the Seventh Legislature; the same being chapter 211, of Session Laws 1919. The pertinent portion thereof reads as follows:
It will be observed that when the position of law and executive clerk was created the appointing power was placed in the commissioners of the land office, but that they were given the right to delegate such authority to the secretary of the commission, should they so see fit. The above-cited provisions of the statute appear as section 111, C.O.S. 1921 and paragraph Z4 thereunder, reading, "Commissioners of the Land Office * * * one law and executive clerk, $2,750.00," was amended in immaterial respects by section 1, c. 50, Session Laws 1923-24, and this in turn by section 1, c. 268, Session Laws 1929, and now appears in this form as section 3499, O.S.1931. By this latter amendment the salary of the law and executive clerk was increased to $3,600 per year, and the position of an assistant law and executive clerk was created and the appointment of two title examiners and two assistant title examiners were authorized. However, this amendment made no change...
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