Cornell v. McAllister

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

249 P. 959

121 Okla. 285, 1926 OK 814

CORNELL v. McALLISTER et al.

No. 17788.

Supreme Court of Oklahoma

October 12, 1926

Syllabus by the Court.

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.

Section 57, art. 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.

Under section 57, art. 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,§ 19, of the Constitution.

Since article 6, § 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.

Appeal from District Court, Oklahoma County; Thomas G. Chambers Judge.

Action by H. Nelson Cornell against W. C. McAllister and others to enjoin defendants from placing the name of John Rogers on the official ballot to be voted on November 2, 1926, as the Democratic candidate for State Examiner and Inspector. Judgment for defendants, and plaintiff appeals. Affirmed.

Charles H. Garnett, of Oklahoma City, for plaintiff in error.

Rainey & Flynn and Green & Anderson, all of Oklahoma City, and I. C Saunders, of Shawnee, for defendants in error.

MASON J.

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.

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.

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."

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.

For reversal, the plaintiff in error contends that the defendant John Rogers is not qualified to hold the office of state examiner 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.

The qualifications of the state examiner and inspector and the duties of such official are prescribed by article 6, § 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."

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."

Section 14 of said act (section 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 Okl. 35, 233 P. 684, 42 A. L. R. 765, 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.

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