Naylor v. Carter

• Decision Date: 12 December 1933
• Docket Number: 24935.
• Citation: 27 P.2d 843,167 Okla. 125,93 A.L.R. 254,1933 OK 659
• Parties: NAYLOR v. CARTER, State Auditor. [a1]
• Court: Oklahoma Supreme Court

27 P.2d 843

167 Okla. 125, 93 A.L.R. 254, 1933 OK 659

NAYLOR v. CARTER, State Auditor. ^[a1]

No. 24935.

Supreme Court of Oklahoma

December 12, 1933

Syllabus by the Court.

1. A person duly appointed to an office by the proper appointing authority who has in good faith performed the duties pertaining to the office and who substantially complied with the requirements of the act under which he is appointed relative to qualifications in the absence of a de jure claimant, may enforce payment by the public of the compensation to which an incumbent of the office is entitled.

2. Record examined and held, that claimant has honestly and in good faith substantially complied with the requirements of chapter 32, Session Laws 1933.

Original mandamus proceeding by H. N. Naylor against Frank C. Carter State Auditor.

Writ granted.

Lester & Briggs, of Oklahoma City, for plaintiff.

J Berry King, Atty. Gen., and Robert D. Crowe, Asst. Atty Gen., for defendant.

SWINDALL Justice.

On August 12, 1933, the plaintiff made application and was granted permission by this court to file an original action in mandamus against Frank C. Carter, state auditor, for his salary and certain expenses incurred by him in performing his duties as chief inspector of the state market commission, the market commission being established as a department in the state board of agriculture by chapter 32, Regular Session of the Legislature in 1933.

The plaintiff, among other things, alleges that he is a resident and legal voter of the state of Oklahoma, and that on the 12th day of May, 1933, the state board of agriculture of the state of Oklahoma in regular session duly elected and employed said plaintiff as chief inspector of the state market commission, and that on said date he duly qualified as such inspector and has ever since been and is now the duly qualified and acting chief inspector of the state market commission of Oklahoma. He further alleges that the board of agriculture of Oklahoma in lawful session duly approved his claim for services as said officer for a portion of the month of May, 1933, in the sum of $96.80, which amount was a true and correct amount due plaintiff for said services during said period of time in May, 1933, and that said board duly approved the claim of plaintiff for the month of June, 1933, in the sum of $150, and that the plaintiff expended in actual and necessary expenses in traveling and while engaged in his official duties as chief inspector of the market commission the sum of $70.35, and that said sum was advanced and paid from the personal funds of plaintiff and he attaches an itemized statement of said expenses to his petition as a part thereof and alleges that he has in his possession the actual and original receipts signed by each person to whom he paid said expense items. He makes like claim for compensation for the month of July and expenses for that month. He further states that he has duly presented said claims to Hon. Frank C. Carter, state auditor, and said claims were disallowed by said auditor upon the ground that such claims cannot be paid until requirements are met with as set out in section 7 of chapter 32, commonly referred to as Senate Bill No. 181, as per opinion of the Attorney General. Plaintiff further alleges that he is qualified to inspect the principal market products required to be inspected under said law, and that there are certain technical requirements in said act that cannot be complied with, which we shall refer to later in this opinion.

Upon the filing and presentation of said petition to this court, an alternative writ of mandamus was issued and the defendant has filed his return in which he alleges, among other things, that at the regular session of the Fourteenth Legislature, the chapter above mentioned was passed and by the provisions of section 2 thereof created the state market commission to be composed of the president and members of the state board of agriculture. Section 7 of said bill creates the office of chief inspector at an annual salary of $1,800. Said section further provides: "The Chief Inspector of the State Market Commission, department of the State Board of Agriculture, must be qualified as such inspector by holding licenses from the United States Department of Agriculture to inspect all fruits, vegetables and hay, and shall qualify to inspect any other farm product upon which inspection service is made available, as provided by this Act, and required by the laws of the State of Oklahoma. * * *"

Said defendant further states that the state market commission on the 12th day of May, 1933, purported to appoint H. N. Naylor, plaintiff, to the position of chief inspector, but that said H. N. Naylor was ineligible for such appointment and was not qualified as such inspector by holding licenses from the United States Department of Agriculture to inspect fruits, vegetables, and hay, nor was he qualified to inspect other farm products upon which inspection service is made available; that said plaintiff was not then and has never since been eligible to be appointed nor qualified to serve as chief inspector; that plaintiff was therefore a usurper of the office of chief inspector and does not have legal title to said office.

That the compensation of an officer in the state of Oklahoma is incidental to and attaches to the legal title to said office and the mere fact that he is in possession of the office and performing the duties thereof does not entitle him to the compensation attaching to the title to the office.

For further answer to the petition defendant denies that plaintiff is the duly qualified chief inspector of the state market commission, and that he is a de jure officer.

Defendant denies that it is impossible for any one in the state of Oklahoma to meet the requirements in section 7 of Senate Bill No. 181 of the Fourteenth Legislature by holding licenses from the United States Department of Agriculture to inspect fruits, vegetables, and hay, and said defendant denies that it is impossible to comply with the various provisions of said Senate Bill No. 181, relative to the qualifications of the chief inspector of the market commission.

Upon the issue thus joined on order of this court, testimony was taken before the referee of this court and filed in the office of the clerk. The case has been orally argued and submitted on briefs.

Section 2 of chapter 32, being the act under consideration, provides that: "There is hereby created a State Market Commission as a Department of the State Board of Agriculture of Oklahoma, composed of the president and members of the State Board of Agriculture, and the State Market Commission hereby created shall perform all of the duties heretofore performed by the State...