Gordon v. Conner

• Decision Date: 07 June 1938
• Docket Number: Case Number: 27619
• Citation: 80 P.2d 322,183 Okla. 82,1938 OK 384
• Parties: GORDON et al v. CONNER, Sheriff
• Court: Oklahoma Supreme Court

1938 OK 384

80 P.2d 322

183 Okla. 82

GORDON et al v. CONNER, Sheriff

Case Number: 27619

Supreme Court of Oklahoma

Decided: June 7, 1938

Syllabus

¶0 1.STATUTES--Counties--Sheriff and County Commissioners not Subject to Statutory Penalty for Payment of Salaries of Deputy Sheriffs and Expenses Under Unconstitutional Law Where Payments Made in Good Faith.

The sheriff and members of the board of county commissioners of a county will not be penalized, under sections 5964 and 5965, O. S. 1931, for payments of salaries to deputy sheriffs and for payments of expenses incurred by the sheriff and his deputies under an unconstitutional local act where such payments are made in good faith and before the law is declared unconstitutional, or before they are advised by the proper official as to its unconstitutionality.

2.STATUTES--Presumption That Earlier Special Statute Is Intended to Remain in Force as Exception to General Statute.

Where there are two statutes upon the same subject, the earlier being special and the later general, the presumption is, in the absence of an express repeal, or an absolute incompatibility, that the special is to remain in force as an exception to the general.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Action by Jess Gordon et al., taxpayers, against Richard B. Conner, Sheriff of Osage County, et al. to recover money alleged to have been illegally collected.Judgment for defendants, and plaintiffs appeal.Affirmed.

Jno.M. Goldesberry, Gerald B. Klein, James Goldesberry, and Carl C. Wever, for plaintiffs in error.

McCoy, Craig & Pearson, for defendants in error.

PHELPS, J.

¶1Jess Gordon, J. S. Plummer, and Jim Keefe, resident taxpayers of Osage county, filed three actions in the district court of said county against the sheriff and members of the board of county commissioners, under the provisions of sections 5964 and 5965, O. S. 1931, wherein it was sought to recover a certain sum of money for the use and benefit of the county and a similar amount for the plaintiffs, on account of alleged unlawful expenditures of certain county funds.The three cases were consolidated for trial and appeal.The causes were tried to the court below, and judgment entered in favor of defendants, from which plaintiffs have appealed.The parties will be referred to as they appeared in the trial court.

¶2 At the outset, we are met with a motion to dismiss the appeal, for the reason that the actions were brought and the appeal is being prosecuted in the name of individual taxpayers and not in the name of the state of Oklahoma, as required by the provisions of section 5965, supra.It is conceded that the action should have been instituted in the name of the state of Oklahoma on relation of plaintiffs, as taxpayers.It appears, however, that the action was instituted and prosecuted for the benefit of the county and that the improper designation of the partiesplaintiff did not affect a substantial right of the defendants.The cause will not be dismissed or reversed on such ground, but the petition will be treated as ameded to show that the state of Oklahoma on relation of the taxpayers above named was the plaintiff in the action.Dolezal v. Bostick, Co. Atty., 41 Okla. 743, 139 P. 964;Bailey v. Lankford, 54 Okla. 692, 154 P. 672;Reeves v. Noble, 88 Okla. 179, 212 P. 995.

¶3 Other procedural issues are involved, but we have elected to disregard them and to determine the matter upon its merits.Recovery is sought against the sheriff and the board of county commissioners for the amount of the alleged unlawful claims and the penalty.Certain liability is asserted against the sureties on the official bonds of the county commissioners.The claims upon which recovery is sought are divided into three classifications: First, salaries paid to two deputy sheriffs on the ground that six deputies were appointed and the law authorized the appointment of not more than four; second, mileage claims for endeavorance fees paid to the sheriff and his deputies; third, mileage claims for transportation of prisoners to state penal institutions.

¶4 To justify the payment of salary claims for the deputy sheriffs and mileage claims for so-called endeavorance fees, defendants rely upon the provisions of chapter 200, S. L. 1925, which is a special legislative act, applicable only to Osage county.Section 7 of the act provides as follows:

"The county sheriff of Osage county, Oklahoma, shall be allowed in the conduct of his office not to exceed one undersheriff, one bookkeeper, and eight (8) salaried deputies, the undersheriff to receive a salary not to exceed the sum of $175.00 per month, the bookkeeper to receive a salary not to exceed the sum of $150.00 per month, and eight (8) salaried deputies, who shall receive a salary not to exceed the sum of $140.00 per month each, said salaries to be fixed and allowed by the board of county commissioners, upon the application and appointment of the county sheriff."

¶5 The "endeavorance" claims were for expenses incurred by the sheriff and his deputies in making investigations, in making raids and in endeavoring to apprehend persons when no process was issued by a court authorizing such "endeavorances." it is urged that such claims were properly allowed under the authority of section 10 of the special act, which provides as follows:

"That all salaried deputies shall be allowed in addition to their salary, ten cents per mile for the distance actually traveled in serving processes and endeavoring to serve processes, issued out of any court of record in his county, and in addition thereto where there is an extra and additional expense necessary, said deputies may file their itemized statement, with receipts attached, for such additional and necessary expenses, with the county commissioners for their approval or rejection, said itemized statement to be separate and apart from any claimfor mileage, and such claims shall be duly verified and approved by the county sheriff, provided further that the sheriff shall be allowed ten cents per mile for the distance actually traveled in serving any process, investigating any crime, or conducting any raid, on any place within his county, to be paid in like manner as claims of salaried deputies; provided further, that the mileage hereby allowed shall be in lieu of any and all expenses incurred by the sheriff or his deputies in serving processes in his county, in such investigations and raids as above mentioned."

¶6 Chapter 200, S. L. 1925, was amended in some respects by chapter 159, S. L. 1927, the amendments not being material to the issue herein involved.

¶7Plaintiffs contend that the above act is a local or special law and violates section 59, article 5, of the Constitution, relying upon the rule announced in the case of Robinson v. Board of County Commissioners...