Morton v. Adair County Excise Bd., 72181
| Decision Date | 19 September 1989 |
| Docket Number | No. 72181,72181 |
| Parties | Mary MORTON and Carrie Philpott, Appellants, v. The ADAIR COUNTY EXCISE BOARD and The Adair County Commissioners, Appellees. |
| Court | Oklahoma Supreme Court |
On appeal from the District Court, Adair County; William Bliss, Judge.
In a mandamus proceeding to compel the county excise board to restore funding for the county election board's chief clerk position, which had been withdrawn in the process of reducing county budgets to meet revenue shortfall, the trial court denied the relief sought.
Gary R. Buckles, Asst. Dist. Atty., LeFlore County, Poteau, for appellants.
Gerald Hunter, Dist. Atty. and D.K. Cunningham, Asst. Dist. Atty., Sequoyah County, Sallisaw, for appellees.
Robert H. Henry, Atty. Gen. and Thomas L. Spencer, Asst. Atty. Gen., Oklahoma City, for State Election Bd. as amicus curiae.
The dispositive question is whether, in the process of reducing county office budgets to meet revenue shortfall, preference for funding should be given to a statutorily mandated position of county election board's chief clerk, whose specific duties no one else is required or permitted to perform, over the county purchasing agent, whose responsibilities, when no one holds that job, must, by force of law, be discharged by an elected county official--the county clerk. Although we answer in the affirmative, we are compelled to affirm the trial court's refusal to issue the writ because no effective relief is now available to the appellants.
The plaintiffs, Mary Morton [Morton], secretary of the county election board [election board], and Carrie Philpott [Philpott], the election board's chief clerk, sought a writ commanding the county excise board [Board] to restore funding for the chief clerk's position which had been withheld in the fall of 1988, shortly after Adair County experienced a revenue shortfall. Trimming the budgets of the various county officers and agencies, the Board reduced mileage and maintenance expenses and withheld funding for some personnel. Among other items, the Board eliminated funding for all the chief clerks or chief assistants of the county officers and agencies. The position of county purchasing agent remained unaffected by the budget reductions.
Morton and Philpott assert the Board did not follow the statutory scheme for trimming county budgets in the face of revenue shortage. They argue the Board has a duty to fund the legislatively mandated position of election board's chief clerk so long as a purchasing agent's position remains as a funded budgetary expense item separate from the salary of the county
clerk. The agent's job, they urge, must be eliminated first. 1
Mandamus, a remedy of an extraordinary nature, 2 is governed by the terms of 12 O.S.1981 §§ 1451 and 1452. 3 Before a writ of mandamus may issue there must be (1) a clear legal right vested in the petitioner, (2) respondent's refusal to perform a plain legal duty which does not involve the exercise of discretion and (3) adequacy of the writ and inadequacy of other relief. 4 A writ will issue when the action sought to be compelled is purely ministerial because the officer or board, when properly requested to do so, has a mandatory duty to act that stands imposed by law. 5 While mandamus will not ordinarily be allowed to control or compel performance of a duty requiring the exercise of discretion, it may issue to compel action when one which the respondent has taken was erroneous or arbitrary. 6
Our concern here is with a clearly mandatory, nondiscretionary duty. The terms of 26 O.S.1981 § 2-117 7 provide that in counties having fewer than 17,500 registered voters, "the secretary shall employ a chief clerk and such other employees as are necessary to perform the duties of the county election board." The legislature's choice of the word "shall" is of significance because that word usually is given its common meaning of "must", which implies a command or mandate. 8 It rules out the In contrast, the statute authorizing the appointment of a county purchasing agent, 19 O.S.Supp.1983 § 1500, 10 provides a built-in substitute for that position's holder. If the job remains unfilled, the mandated duties of the purchasing agent must, by force of law, be discharged by the county clerk. Because the functions of the agent's position may be exercised by an elected county official, it is crystal-clear the statute authorizes but does not command that a separately-funded position be established.
idea of discretion. 9
If the county suffers a revenue shortfall, the excise board is authorized by the terms of 68 O.S.1981 § 2487(5) 11 to reduce the county budget to meet the revenue loss. 12 The excise board must first trim expense items which are statutorily authorized but not required. Next in line for reduction are items whose funding is required by the legislature but not by the constitution. 13 If further budget shrinkage be necessary, the excise board may then reduce expense items for constitutionally mandated governmental functions. This process calls for discretion only when competing personnel or other budgetary items fall into the very same class and degree. Discretion is not implicated when items stand in separate classes or in the same class but in some differing degree. Although the positions of county purchasing agent and county election board's chief clerk are statutorily established in absolute terms, it is the presence of a substitutional component built into the former that places it in a lower degree of priority than the latter.
In short, in the process of reducing county budgets to meet revenue shortfall, preference for funding should be given to a statutorily mandated position of county election board's chief clerk, whose specific duties no one else is required or permitted to perform, over that of a county purchasing agent, whose responsibilities, when no one holds that job, must, by force of law, be discharged by an elected official--the county clerk. We hence hold that the Board should not have withdrawn funding for the county election board's chief clerk position while the purchasing agent's job remained in the funded expense category.
While mandamus would ordinarily be available in a case like this one to restore funding for the election board's chief clerk position, it cannot lie here because it is now too late to affect the county's past (1988-1989) fiscal year budget by requiring the Board to restore funding for the period during which the contested expense item was wrongly withheld. Any attempt to adjust the 1988-1989 fiscal year budget after its expiration would create an impermissible public finance practice. 14 The Board cannot restore funding for the contested personnel expense item to affect the remainder of a fiscal year which has already ended; nor can the election board secretary pay for the expenses incurred in one fiscal year with revenues from a subsequent year. The time during which effective relief could be afforded has passed. For all practical purposes, the dispositive issue in this appeal is now moot.
As a general rule, this court will not decide abstract or hypothetical questions that are not directly related to the granting of actual relief. 15 While no relief may be afforded today, we have nonetheless settled the controversy pressed for our review. It presents an important public-law question which challenges a governmental action that is "capable of repetition, yet evading review." 16
The trial court's order denying the writ is accordingly affirmed.
All Justices concur.
1 Our pronouncement today reaches but one point in controversy: the alleged error in the Board's withdrawal of funding for the position of county election board's chief clerk. No other error is advanced by the appellants. Philpott, the then county election board's chief clerk, pressed no claim in her individual capacity. She merely joined Morton's quest (in the latter's capacity as secretary of the election board) for restoration of funds to pay the salary. Because Philpott's standing as a proper party in this quest for purely budgetary relief was challenged neither below nor on appeal, we express no view on the propriety of her joinder in this proceeding as a party plaintiff/appellant.
2 State v. Oklahoma Public Welfare Comm'n, 196 Okl. 586, 167 P.2d 71, 72 [1946]; Witt v. Wentz, 142 Okl. 128, 286 P. 796, 797 [1930]; see also Woolen v. Coffman, Okl.Cr., 676 P.2d 1375, 1377 [1984].
3 The terms of 12 O.S.1981 § 1451 provide in pertinent part:
"The writ of mandamus may be issued by the Supreme Court or the district court ... to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station; but though it may require an inferior tribunal to exercise...
To continue reading
Request your trial
-
State ex rel. Macy v. BD. OF COM'RS
...See Clay v. Independent School District No. 1 of Tulsa County, 1997 OK 13, at n. 22, 935 P.2d at 305, explaining, Morton v. Adair County Excise Board, 1989 OK 174, 780 P.2d 707, and other opinions.46 Thus, I would affirm the 1. For the pertinent terms of Art. 23 § 10, Okl. Const., see Part ......
-
City of Oklahoma City v. Oklahoma Tax Com'n
...113, 116 [1944]; see also Tulsa Tribune v. Oklahoma Tax Com'n, supra note 5 at 896 (Opala, V.C.J., dissenting).12 Morton v. Adair County Excise Bd., Okl., 780 P.2d 707, 711 [1989]; Lawrence v. Cleveland County Home Loan Auth., supra note 5 at 315-316; In re D.B.W., Okl., 616 P.2d 1149, 1151......
-
Clay v. Independent School Dist. No. 1 of Tulsa County
...Cities Service Gas Co., 162 Okla. 131, 19 P.2d 546 (1933). We recently explained this Excise Board procedure in Morton v. Adair County Excise Board, 780 P.2d 707, 710 (Okla.1989). During the fiscal year the Assessor may file an original action in the District Court for a writ of mandamus, a......
-
Fent v. Contingency Review Bd.
...239. 62. Mootness is a state or condition which prevents the appellate court from rendering effective relief. Morton v. Adair County Excise Bd., 1989 OK 174, 780 P.2d 707, 711. Oklahoma jurisprudence recognizes but two "escape hatches" from its strictures—the public-interest and the likelih......