Cornell v. Mcalister

• Decision Date: 12 October 1926
• Docket Number: Case Number: 17788
• Citation: 121 Okla. 285,249 P. 959,1926 OK 814
• Parties: CORNELL v. McALISTER et al.
• Court: Oklahoma Supreme Court

1926 OK 814

249 P. 959

121 Okla. 285

CORNELL v. McALISTER et al.

Case Number: 17788

Supreme Court of Oklahoma

Decided: October 12, 1926

Syllabus

¶0 1. Constitutional Law--Legislative Construction of Doubtful Provisions -- Intent of Statute Defining "Expert Accountant."

If the meaning of a constitutional provision is doubtful, a practical construction thereof by the Legislature ordinarily will be followed by the courts, unless it appears to be arbitrary, unreasonable, and inadequate, or contrary to the spirit and purpose of the language used in the Constitution. It is apparent, however, that the Legislature in the act under consideration was not attempting to define a vague or doubtful provision of the Constitution.

2. Statutes--Subject Limited by Title--Constitutional Requirement Mandatory. Section 57, article 5, of the Constitution of this state, which provides that every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, is mandatory. Although the rule is well established that it is not to be enforced in such a technical manner as to cripple legislation, yet it has been consistently held that the subject expressed in the title fixes the limit upon the scope of the act.

3. Same -- Constitutional Qualifications of State Examiner and Inspector not Affected by Statute Regulating Practice of Accounting. Under section 57, article 5 of the Constitution, House Bill No. 204, Session Laws 1917, p. 4, is limited by its title and has no application to the qualifications prescribed for the State Examiner and Inspector by article 6, section 19, of the Constitution.

4. States--State Examiner and Inspector--Constitutional Qualifications Office not Subject to Additions by Legislature.

Since article 6, section 19, of the Constitution, which prescribes the qualifications and defines the powers and duties of the State Examiner and Inspector, expressly authorizes the Legislature to prescribe additional duties and powers for said official, but nowhere authorizes it to provide for additional qualifications, it thereby impliedly forbids the Legislature from so doing.

Charles H. Garnett, for plaintiff in error.

Rainey & Flynn, Green & Anderson, and I. C. Saunders, for defendants in error.

MASON, J.

¶1 At the primary election, held August 3, 1926, John Rogers was a candidate for the nomination of the Democratic party for the office of State Examiner and Inspector. At said election, Rogers received more votes than any other candidate for said nomination and, thereupon, he was declared, by the State Election Board, to be the nominee and candidate of the Democratic party for said office at the state election to be held on the 2d of November, 1926, and said board issued and delivered its certificate of nomination to him.

¶2 Thereafter, on September 4, 1926, the plaintiff in error, H. Nelson Cornell, brought this proceeding in the district court of Oklahoma county to enjoin the defendants in error from placing the name of John Rogers on the official ballot to be voted on November 2, 1926. Upon the filing of said petition, the Honorable Thomas G. Chambers, judge of said court, granted a temporary restraining order against the defendants, and, on September 7, 1926, a hearing was held before said court on the question of granting a temporary injunction against said defendants.

¶3 Upon agreement of the parties, the court found the following facts:

"That the said John Rogers has had more than three years' experience as an expert accountant and is a person skilled in the knowledge and science of accounting, but is not the holder of a certified public accountant certificate. "

¶4 The court then rendered judgment dissolving the temporary restraining order previously issued, denying the temporary injunction as prayed for, and dismissing plaintiff's petition for want of equity, from which the plaintiff has duly perfected his appeal to this court.

¶5 For reversal, the plaintiff in error contends that the defendant John Rogers is not qualified to hold the office of State Examiner and Inspector because he does not hold a certified public accountant certificate, and that, therefore, the action of the trial court is contrary to law and should be reversed.

¶6 The qualifications of the State Examiner and Inspector and the duties of such official are prescribed by article 6, section 19,. of the Constitution, as follows:

"The State Examiner and Inspector must have had at least three years' experience, as an expert accountant; his duties shall be,. without notice to such treasurer, to examine the state and all county treasurers' books, accounts, and cash on hand or in bank at least twice each year, and publish his report as to every such treasurer once each year. For the purpose of such examination he shall take complete possession of such treasurer's office. He shall also prescribe a uniform system of bookkeeping for the use of all treasurers. Other duties and powers may be added by law."

¶7 Counsel for plaintiff in error contends that the meaning of the expression "an expert accountant" is vague and indefinite and, inasmuch as the same is nowhere defined in the Constitution, the definition should be used as prescribed by the Legislature in section 11, House Bill No. 204, Session Laws 1917, p. 4, being section 10932, Compiled Oklahoma Statutes, 1921, which provides:

"An expert accountant is hereby defined as a person skilled in the knowledge and science of accounting, and who is the holder of a 'certified public accountant' certificate issued in pursuance of the provisions of this act."

¶8 Section 14 of said Act (sec. 10935, C. O. S. 1921) provides that no person shall be permitted to practice or hold himself out as a public or expert accountant without having first obtained a certified public accountant certificate. It was held, however, in an opinion by Ray, Commissioner, in the case of State ex rel. Short, Attorney General, v. Riedell, 109 Okla. 35, 233 P. 684, that both section 11 and section 14, supra, were unconstitutional. Plaintiff devotes many pages of his brief to an attack on the foregoing opinion, which to the writer of this opinion is not entirely without merit, but the holding in said case, as we view it, is not controlling in the instant case. In other words, in deciding the case at bar, we may concede, without deciding, that the only question presented in said case was whether or not one might practice the profession of expert or public accountant without having first obtained a certified public accountant certificate, and that section 11 of said act was not there involved and that the portion of the opinion holding said section 11 unconstitutional was purely obiter.

¶9 Can it be said that the Legislature, by enacting section 11, supra, intended to define the expression "an expert accountant" as found in article 6, section 19, of the Constitution? It is a recognized rule of construction that, if the meaning of a constitutional provision is doubtful, a practical construction thereof by the Legislature will be followed by the courts, if it can be done without doing violence to the fair meaning of the words used. Coyle v. Smith, 28 Okla. 121, 113 P. 944.

¶10 In 12 Corp. Juris, p. 714, the rule is announced as follows:

"If the meaning of the Constitution is doubtful, a legislative construction will be given serious consideration by the courts, both as a matter of policy, and also because it may be presumed to represent the true intent of the instrument."

¶11 In Ruppert v. Caffey, 251 U.S. 264, 40 S. Ct. 141, 64 L. Ed. 260, the Supreme Court of the United States, in considering the constitutionality of the Volstead Act, which declared...