Herndon v. Anderson

• Decision Date: 26 September 1933
• Docket Number: Case Number: 24165
• Citation: 25 P.2d 326,165 Okla. 104,1933 OK 490
• Parties: HERNDON v. ANDERSON
• Court: Oklahoma Supreme Court

1933 OK 490

25 P.2d 326

165 Okla. 104

HERNDON v. ANDERSON

Case Number: 24165

Supreme Court of Oklahoma

Decided: September 26, 1933

Syllabus

¶0 1. Counties--Status of County in State Govermnent--Legislative Control Over Public Functions of County.

A county is an involuntary, subordinate political subdivision of the state created to aid in the administration of governmental affairs of said state and for greater convenience in carrying on the public affairs; it has no inherent powers, but derives those powers solely from the sovereignty. All powers intrusted to it are the powers of the sovereign which created it. Its duties are likewise the duties of the sovereignty; and being in its nature and object a subordinate political subdivision of the state, the Legislature may, unless restrained by the Constitution, exercise control over such agency of the state and require such public duties and functions to be performed by it as follow within the general scope and object of such agency of the state.

2. Constitutional Law-Lawmaking Power of Legislature.

The lawmaking power of the Legislature is supreme within its proper sphere, qualified only by the restrictions and limitations imposed by the state and federal Constitutions.

3. Taxation--Authority of Legislature.

All taxes are levied and collected under and by the authority of the Legislature.

4. Courts--Creation of Superior Courts in Counties of Certain Population--Discretion of Legislature as to Making Expense of Court a Burden Upon County or Upon State.

The question of establishing superior courts to be located in counties having a population made the basis for the classification for the creation of such courts in the respective counties of the state, rests with the Legislature, and unless restrained by constitutional provisions, it may determine in what manner and means the costs may be defrayed. It may apportion the whole or a portion of that common burden upon the respective counties in which said court is located when in its judgment it is for the benefit of that county as well as the state at large, or it may apportion the same upon the state. The Legislature has a right to exercise its discretion in the distribution of public burdens of this character.

5. Same--Statutes--Act Establishing Superior Courts in Counties of Certain Population Containing Cities of Certain Population and Making Salary of Judge a County Charge Held Constitutional.

That part of the Act of the Legislature, approved Feb. 10, 1915, H. B. No. 175, Acts of 1915 (c. 20) sections 3102 and 3111, C. O. S. 1921, establishing superior courts and providing for the salary of the judge of said court and the payment thereof, in counties having a population of 33,000 or more, and not exceeding 80,000, and having a city therein with a population of 18,000 and not exceeding 50,000, as now or hereafter shown by the preceding federal census, is not repugnant to section 59, art. 5, of the Constitution of Oklahoma, nor is it repugnant to section 32, art. 5, nor section 46 (b) of art. 5 of said Constitution.

6. Judgment Affirmed in Part and Reversed in Part.

Record examined. Judgment of the trial court affirmed in part and reversed in part.

Appeal from District Court, Garfield County; O. C. Wybrant, Judge.

Protest by R. D. Anderson and others before Board of Commissioners of Garfield County against payment of salary of F. W. Herndon, judge of superior court. Protest denied, and protestants appealed to district court. From judgment of that court, the appellee therein brings error. Affirmed in part and reversed in part.

F. E. Chappell, McKeever, Elam, Stewart & McKeever, R. E Owens, and Robert Burns, for plaintiff in error.

Winfield Scott, James A. Ingraham, Otjeu & Carter, and W. L. Farmer, for defendant in error.

Thos. J. Horsley, amicus curiae.

McNEILL, J.

¶1 This action involves a protest against the payment of the salary of F. W. Herndon, judge of the superior court of Garfield county.

¶2 The parties will be referred to as they appeared in the trial below. Plaintiffs, as taxpayers of Garfield county, filed with the county clerk of said county their protest to the payment of the salary of any of the officials of said superior court of said county for the reason that the law creating said office, being House Bill No. 175, S. L. 1915 (c. 20) or section 3102, C. O. S. 1921, is unconstitutional in that said laws is a local and special law and violates section 59, art. 5, of the Constitution of the state of Oklahoma, and section 46 (b), art. 5, thereof.

¶3 This protest was filed before the board of county commissioners. The county commissioners denied said protest, and an appeal therefrom was taken to the district court of said county.

¶4 The trial court held that section 3102, C. O. S. 1921, being section 1, Session Laws of 1915 (c. 20), creating and establishing a superior court, was valid; but that section 3111, C. O. S. 1921, which provided that the salary of the judge of said court should be paid out of the court fund of the county in which said superior court is located, was invalid.

¶5 The stipulation, together with the objections thereto as shown by the record, is as follows:

"Mr. Otjen: It is stipulated by and between the parties, appellants and respondent, F. W. Herndon, judge of the superior court, that the respondent filed claim No. 5763 against Garfield county, Okla., claiming as salary as judge of the superior court of Garfield county for the month of April, 1932, the sum of $ 333.33;

"That this claim was filed by the county clerk on April 14, 1932;

"That to this claim, protest of appellants was filed as shown by the record in this case:

"That in the passage of what is known as House Bill 175 in the Session Laws of Oklahoma of 1915, being set out in the Compiled Laws of Oklahoma at section 3102, Statutes of 1921, that no notice or publication of the intention to introduce such an act in the Legislature of the state of Oklahoma was made and no publication of the intention to introduce such act was made or had prior to the passage thereof.

"It is stipulated by and between the appellants and the respondent, F. W. Herndon, judge of the superior court, that the respondent was appointed judge of the superior court of Garfield county June 3, 1931, by the Governor of the state of Oklahoma, and has been occupying the position of judge of the superior court from that date to the present time.

"It is stipulated between the appellants and F. W. Herndon, judge of the superior court, that if the court is legally established, which the appellants deny, that said F. W. Herndon is the duly appointed, qualified and acting judge of said court.

"It is stipulated that the appellants do not contend that the funds were not available for the payment of the claim.

"Mr. Stewart: To which stipulation, the appellee, Frank Herndon, judge of the superior court of Garfield county, Okla., expressly reserves his objection to the introduction of any evidence in this court bearing upon the constitutionality of the act in question, his contention being that the district court jurisdiction is limited to the original jurisdiction of the board of county commissioners of Garfield county, and that said board had no jurisdiction to determine the constitutionality of this act, and that this court has no jurisdiction in this case.

"The Court: The objection in each of these cases to the jurisdiction will be taken and held and reserved by the court until the case is heard and passed upon. The ruling upon the objection will be reserved for the present.

"Mr. Otjen: The appellants contend that at the time of the passage of the act known as House Bill 175, Session Laws of Oklahoma 1915, that seven of the counties of the state of Oklahoma came within the population limit of the bill, were it not for the qualification in the bill as to the city population that the 1910 federal census, being the federal census preceding the passage of this act, showed the population qualification in the bill as to the city population that the 1910 federal census, being the federal census preceding the passage of this act, showed the populations of these counties as follows:

"Tulsa County 34,995

"Muskogee County, 52,743

"Pottawatomie County, 43,595

"Garfield County, 33,050

"Pittsburg County, 47,650

"Caddo County, 35,685

"Lincoln County, 34,779

"That of the seven counties, but three, being Tulsa, Muskogee and Pottawatomie, had the city required under the terms of the act.

"Mr. Stewart: To which statement, the appellee, Frank Herndon, objects for the reason that said tendered information is incompetent, irrelevant and immaterial, and for the further reason that said act--

"The Court: I understand it is offered as a statement of counsel and not as evidence. It is not offered as evidence. It is no part of the stipulation, and merely a statement of counsel.

"Mr. Otjen: Yes, sir."

¶6 Plaintiffs, being the defendants in error, discuss their contentions under the following propositions:

"1. Upon appeal from an action of the board of county commissioners to the district court, the district court acquires no greater jurisdiction than possessed by the board of county commissioners, and where the question of the constitutionality of a statute is presented to the board of county commissioners and an appeal is taken to the district court from the decision of the board of county commissioners, the district court is without jurisdiction to pass upon the constitutionality of the law in question.

"2. That part of the Act of the Legislature approved Feb. 10, 1915, H. B. No. 175, Acts of 1915, sections 3102 and 3111, establishing superior courts and providing for the salary of the judge of said court, and the payment thereof, in counties having a population of 33,000 or more, and not exceeding 80,000 and having a city therein with a population of 18,000 and not exceeding 50,000, as now or hereafter shown by the preceding federal census, is not repugnant to section 59, art. 5, of the Constitution of

...