Edwards v. Carter, Case Number: 25073

• Decision Date: 30 January 1934
• Docket Number: Case Number: 25073
• Citation: 167 Okla. 287,29 P.2d 610,1934 OK 46
• Parties: EDWARDS et al. v. CARTER, State Auditor, et al.
• Court: Oklahoma Supreme Court

1934 OK 46

29 P.2d 610

167 Okla. 287

EDWARDS et al. v. CARTER, State Auditor, et al.

Case Number: 25073

Supreme Court of Oklahoma

Decided: January 30, 1934

Syllabus

¶0 1. Judges--Salaries of Judges of Criminal Court of Appeals Held Payable by State Though Sufficient Appropriation Therefor not Made by Legislature.

Under the Oklahoma Constitution, section 17 of the Schedule, declaring that such state officers as may be created shall receive such compensation for their services as may be provided by law, section 3481, O. S. 1931, and section 10, article 23, declaring that in no case shall the salary or emoluments of any public official be changed after his election, unless by operation of law enacted prior to such election, and section 55, article 5, declaring that no money shall ever be paid out of the treasury of the state, except in pursuance of an appropriation by law, the salaries of the Judges of the Criminal Court of Appeals are required to be paid though the Legislature has failed to make an appropriation in a sufficient amount therefor, as the appropriation is made by the Constitution, and notwithstanding the expiration of two and one-half years from the adoption of the Constitution, as that provision does not relate to appropriations made by the Constitution.

2. Mandamus--Proper Remedy to Compel Payment of Salary of Judge of Criminal Court of Appeals.

Mandamus is the proper remedy to compel the State Auditor to issue a warrant on the state treasury for the payment of a salary of a Judge of the Criminal Court of Appeals, and to the State Treasurer to pay said warrant or indorse thereon the proper notation, as by law provided, for the allowance of interest.

Original proceeding for a writ of mandamus by Thomas A. Edwards and James S. Davenport to issue to F. C. Carter, State Auditor, and Ray O. Weems, State Treasurer. Writ granted.

Hall & Thompson, for petitioners.

J. Berry King, Atty. Gen., and Randell S. Cobb, Asst. Atty. Gen., for respondents.

Ledbetter, Stuart, Bell & Ledbetter, for intervener.

PER CURIAM.

¶1 This is an original proceeding in this court in which the petitioners pray for a writ of mandamus requiring the State Auditor to allow their salary claims in the sum of $ 625 each month, and requiring the State Treasurer to pay said warrants or indorse thereon proper notation, as by law provided, for the allowance of interest.

¶2 The allegations of the petitioners are that at the time of their election to office the salary provided by law for each of their offices was $ 7,500 per annum, payable monthly, and that the State Auditor has refused to allow their claims for salaries in an amount greater than $ 500 per month. The Hon. Wm. H. Murray, Governor of the state of Oklahoma, was permitted to intervene in the action.

¶3 The Governor and the respondents admit that each of the petitioners is entitled to the amount of salary provided by law for their offices at the time of their election. They admit that under the provisions of section 10, article 23, of the Constitution, neither the salary nor the emoluments of either of the petitioners may be changed after his election or during his term of office. They contend, however, that neither of the petitioners is entitled to a warrant for his salary for more than $ 500 during any month of this fiscal year. They base that contention on the fact that the Legislature appropriated for this fiscal year for the office of each of the petitioners only $ 6,000 payable monthly. Chapter 5, Session Laws 1933.

¶4 Under the provisions of section 2, article 10, of the Constitution it was the duty of the Legislature to "provide by law for an annual tax sufficient with other resources to defray the estimated ordinary expenses of the state for each fiscal year." The salary provided by law for the offices held by the petitioners is a part of the ordinary expenses of the state.

¶5 Let us remember that the people constitute the sovereignty; that the people have spoken through their Constitution; that they have set up a government of three separate, independent and co-ordinate departments; that to each department the people, by their Constitution, delegated certain powers, with certain limitations and restrictions on the exercise thereof, and that by those limitations and restrictions certain fields were definitely and permanently withdrawn from the field of legislative action.

¶6 By section 36, article 5, of the Constitution, the authority of the Legislature is extended to all rightful subjects of legislation, but by the provisions of section 10, article 23, of the Constitution, it is provided:

"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; nor shall the term of any public official be extended beyond the period for which he was elected or appointed. * * *"

¶7 This constituted a limitation and restriction upon the power of the Legislature. Any attempt, directly or indirectly, by the Legislature to evade the force and effect of that constitutional limitation and restriction is ineffective and void. There is no principle of our government that is better settled than that the salary or emoluments of a public official cannot be changed during his term of office in violation of such a constitutional prohibition. In fact, the respondents and intervener concede the full force and effect of the above plain and unambiguous constitutional limitation, and admit that the petitioners are entitled under the Constitution to receive their undiminished salaries, unless said constitutional limitation is modified by a further constitutional provision which we shall hereinafter notice. The state expects and should have the utmost fidelity from its public officials. The makers of the Constitution guaranteed to its public officials by the above constitutional provision fidelity and good faith to them, and withdrew from the field of legislation the question of their salary and emoluments of office during their term. The Legislature is without power to repudiate the pledged faith of the people to its public officers, and any effort on its part to do so is utterly void.

¶8 It is said, however, that this is a period of economic stress, and that by reason thereof the Legislature saw fit, and had the power to refuse, to appropriate money sufficient to pay the salaries of the petitioners as fixed by the Constitution and laws. It must be remembered that constitutional provisions are made to endure in times of adversity as well as in times of prosperity. It was well said by the Supreme Court of the United States in Home Building & Loan Ass'n v. Blaisdell et ux., 54 S. Ct. 231, 235, 78 L. Ed.--promulgated on the 8th day of January, 1934:

"Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved."

¶9 The people of the state are loyal, faithful, and true to their Constitution; they want economy in government; but they do not desire the repudiation by the state of its good faith or of its obligations.

¶10 This wholesome provision of our Constitution was placed therein with a dual purpose: One, as a pledge to the public officers that they would be compensated in a fixed sum during their term of office; the other, as a protection to the people in preventing the increasing of the salaries of public officers through enthusiastic waves of popular approval of some public official, thereby encouraging such public official to disregard his public duties in order to win popular acclaim and in order to increase the salary or emoluments of his office. Political expediency should never be used to attempt to circumvent or ignore the plain, direct provisions of the Constitution. The petitioners in this case are elected public officials; their terms of office were fixed by law; their salaries were fixed at the sum of $ 7,500, payable monthly, prior to their election, and they are entitled to this salary undiminished unless by other provisions of the Constitution they are precluded from drawing the same. We shall, therefore, consider the other contentions in this case.

¶11 The question in this case is whether or not the petitioners are entitled to payment monthly during this fiscal year of the amount of salary provided by law, or whether they are entitled only to the amount of salary for which the Legislature made an appropriation.

¶12 It is said that the making of an appropriation in a lesser amount than that provided by law is not a reduction in the amount of salary. It is, however, a change in the emoluments of office. Under the provisions of section 10, article 23, of the Constitution, neither the salary nor the emoluments may be changed. The payment of the salary of public officers at the time provided by law is one of the emoluments of office. The withholding of the amount of salary to which a public officer is entitled operates to diminish the value thereof. We quote from the language of the Supreme Court of the United States in the case of O'Donoghue v. United States, 289 U.S. 516, 77 L. Ed. 1356, as follows:

" Obviously, diminution may be effected in more ways than one. Some may be direct and others indirect, or even evasive as Mr. Hamilton suggested. But all which by their necessary operation and effect withhold or take from the judge a part of that which has been promised by law for his services must be regarded as within the prohibition. Nothing short of this will give full effect to its spirit and principle.'"

¶13 The Governor and the respondents say that the Legislature failed to perform its duty, and that as a result of such failure the petitioners must suffer diminution and change in the salary and emoluments of their offices although such diminution and change are expressly prohibited by the...