Jefferson v. Toomer

• Decision Date: 09 May 1911
• Citation: 115 P. 793,28 Okla. 658,1911 OK 167
• Parties: JEFFERSON v. TOOMER, Clerk of Superior Court.
• Court: Oklahoma Supreme Court

115 P. 793

28 Okla. 658, 1911 OK 167

JEFFERSON v. TOOMER, Clerk of Superior Court.

Supreme Court of Oklahoma

May 9, 1911

Syllabus by the Court.

The act approved on the 19th day of March, 1910 (Laws 1910, c. 69) entitled "An act relating to certain county and district offices," is not invalid as being in conflict with section 57, art. 5, of the Constitution.

Error from Superior Court, Muskogee County; Edgar A. De Meules Special Judge.

Motion of E. D. Jefferson for writ of mandamus against Robert Toomer, Clerk of the Superior Court, Muskogee County. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

A. A Davidson and Brown & Stewart, for plaintiff in error.

Bailey & Wyand and Flynn, Ames & Chambers, for defendant in error.

KANE J.

This was a motion for a writ of mandamus filed by the plaintiff in error, plaintiff below, in the superior court of Muskogee county, to require the defendant in error, defendant below as clerk of that court, to file a certain civil action, to contest the title of the office of justice of the peace, growing out of the election of November 8, 1910. The clerk refused to file same on the ground that the act regulating his compensation and fees and costs therein prescribed was unconstitutional and void, because the title of said act is repugnant to section 57, article 5, of the Constitution, which provides: "Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length: Provided, that if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof." The defendant, in answering to the rule to show cause why the writ should not run against him, admitted all the allegations in the plaintiff's affidavit, and stated that he refused to file the cause upon the ground that the act regulating his compensation and fees, and costs therein was unconstitutional and void, for the reason above set out. The cause was heard before Hon. Edgar A. De Meules, a member of the bar, as special judge, the regular judge having entered an order disqualifying himself, who dismissed the same, holding that the act in question was unconstitutional and void, and of no effect. To reverse this judgment, this proceeding in error was commenced.

The question before this court is the construction of the fee and salary law approved March 19, 1910 (Laws 1910, c. 69), entitled "An act relating to certain county and district offices." The case is briefed by counsel for both sides upon the theory that the office of clerk of the superior court is a county office, and, without passing upon that question, this opinion will be based upon that theory.

The construction of section 57 of article 5 of the Constitution has been before this court several times. Pond Creek v. Haskell, 21 Okl. 711, 97 P. 338; Noble State Bank v. Haskell et al., 22 Okl. 48, 97 P. 590; In re Menefee, State Treasurer, et al., 22 Okl. 365, 97 P. 1014; In re County Com'rs of Counties Comprising Seventh Judicial District, 22 Okl. 435, 98 P. 557; State ex rel. v. Hooker, County Judge, 22 Okl. 712, 98 P. 964; Atwater v. Hassett et al., 111 P. 802; Holcomb v. C., R.I. & P. Ry. Co., 112 P. 1023; Coyle v. Smith, 113 P. 934; Binion, Sheriff, etc., v. Oklahoma, G. & E. Co. (recently decided by this court and not yet officially reported) 114 P. 1096. While the identical question presented in the case at bar may not have been directly passed upon in any of the foregoing cases, the principle that legislative enactments will be sustained if the subject-matter of the act is not in conflict with the general subject-matter expressed in the title is clearly enunciated. It is conceded by counsel for defendant in error in their brief that the above doctrine is firmly established. "But," they ask, "does this title embrace but one subject, and is that subject clearly expressed in the title? Can the Legislature and the people of the state, by a reading of the title, reasonably determine the character of legislation contemplated, or is the title of that indefinite and uncertain character that innumerable acts of legislation might be embraced thereunder, such as could not be reasonably included from a reading of the title itself?" Counsel then summarize their objections to the title as follows: "Then, summarizing, we contend that the title of this act is too broad, because under it we are authorized to enact legislation upon almost any subject of legislation contained in our statute.

It is as broad as would be an act relating to the general laws of the state of Oklahoma. We also contend that the subject is not clearly expressed, because it does not state the officers relating to whom the legislation is to be enacted or the purpose of the legislation. Let us repeat: An act relating to certain county and district offices is by the use of the word 'certain' made uncertain."

In one of the cases cited above (State ex rel. v. Hooker, County Judge) it was held that: "The title may be expressed in general words, or it may be a brief statement of the subject or it may be an index to, or an abstract of, the contents of the act." In the opinion, Mr. Chief Justice Williams quoted with approval the following from Lindsay v. U.S. Saving & Loan Association et al., 120 Ala. 172, 24 So. 176 (42 L. R. A. 783): "The Constitution does not contemplate but one title, and leaves the form which may be given it to legislative discretion. It may be expressed in general words, or it may be a brief statement of the subject, or it may be an index to, or an abstract of, the...