Phelps v. Childers

• Decision Date: 11 February 1939
• Docket Number: 28853.
• Citation: 89 P.2d 782,184 Okla. 421,1939 OK 83
• Parties: PHELPS et al., Justices, v. CHILDERS, State Auditor, et al.
• Court: Oklahoma Supreme Court

89 P.2d 782

184 Okla. 421, 1939 OK 83

PHELPS et al., Justices, v. CHILDERS, State Auditor, et al.

No. 28853.

Supreme Court of Oklahoma

February 11, 1939

Rehearing Denied March 11, 1939.

Syllabus by the Court.

1. A statute imposing or providing for new duties or services to be performed by a public official, which new duties or services are incident to or germane to his office, and where such act provides additional compensation therefor violates Section 10, Article 23 of the Oklahoma Constitution Okl.St.Ann., prohibiting the Legislature from changing the salary or emoluments of a public official during his term of office, but where the new duties or services so provided in the act are foreign to or beyond the scope or range of and not germane to the duties of the office, such statute does not violate such section.

2. In passing upon the constitutionality of an act of the Legislature the courts may not question or inquire into either the wisdom or motive of the lawmaking body.

3. Section 1, Article 4 of the Constitution, Okl.St.Ann., does not prohibit the exercise of a power by either of the departments of government unless said power "properly belongs" to one of the other departments.

4. A statute providing that the Justices of the Supreme Court elected at the general election in 1934 should compile certain procedural statutes and annotate the same, fixing an annual salary or compensation for the same, created the offices or positions named therein, and the failure of the Legislature to appropriate in a separate measure money for the payment of the salary so fixed does not defeat the right of such justices to recover for the same. State ex rel Telle v. Carter, 170 Okl. 50, 39 P.2d 134; Battles v. Childers, 177 Okl. 589, 61 P.2d 253.

5. When an enrolled bill has been signed by the Speaker of the House and the President of the Senate, respectively, in the presence of those bodies, immediately after the bill has been read publicly at length and the same has been approved by the Governor and deposited or filed in the office of the Secretary of State, it is not competent to show that such act, so authenticated, approved and deposited or filed was not read on three different days in each House. Coyle v Smith, 28 Okl. 121, 113 P. 944; Thompson v. Huston, 170 Okl. 195, 39 P.2d 524.

Original proceeding in the Supreme Court for writ of mandamus by James I. Phelps, N. S. Corn, and Thomas L. Gibson, Justices of the Supreme Court of Oklahoma, against C. C. Childers, State Auditor, and Hubert L. Bolen, State Treasurer, to compel them to approve and pay claims for services performed in compliance with certain statute, wherein Frank Carter, subsequently elected State Auditor, and Carl Seibring, subsequently elected State Treasurer, were substituted as defendants.

Writ granted.

LUCAS, LACKEY, and WOODALL, Special Justices, dissenting.

James I. Phelps, N. S. Corn, and Thomas L. Gibson, all of Oklahoma City (Samuel O. Neff, of Oklahoma City, of counsel), for plaintiffs.

Mac Q. Williamson, Atty. Gen., and John H. Poe and Randell S. Cobb, Asst. Attys. Gen., for defendants.

CARGILL Special Justice.

This is an original action filed by the plaintiffs, Justices of the Supreme Court of Oklahoma, elected to such office on November 6, 1934, seeking to compel, by mandamus, the defendant C. C. Childers, State Auditor, and Hubert Bolen, State Treasurer, to approve and pay their several claims for services performed in compliance with the provisions of House Bill 239, Session Laws 1936-37, c. 21, art. 1, [89 P.2d 784] Page 33, 75 Okl.St.Ann. § 1 note, which became effective August 10, 1937. Since the filing of this action Frank Carter has become State Auditor and Carl Seibring State Treasurer. On motion they have been substituted as defendants.

The three Justices concerned have entered their disqualifications, the remaining regular members of the Court have recused themselves, and the Governor has appointed the present nine Special Justices to hear the case.

Plaintiffs plead their election to office, their written acceptance and agreement to perform the services as called for in the Act, the performance of such service, the filing of verified claims covering the same, and the action of the State Auditor disallowing the same. An alternative writ of mandamus issued in usual course.

The defendants' answer and amendment thereto admits all the matter pleaded save the performance of the services and alleges the Act violates Section 10, Article 23, Oklahoma Constitution, Okl.St.Ann., in that the real purpose, intent and motive of the Legislature in passing it was to unconstitutionally increase the salary and emolument of the offices of the plaintiffs.

The Bill provides for the revision and compilation of the civil, probate and appellate statutes of this State, recites the necessity of such revision, directs the Justices of this Court elected in November 1934, upon their written acceptance of the terms of the Act filed with the Secretary of the State, to perform such service, fixes the compensation for such service at $2,500, annually, payable monthly, requires the work as and when completed to be filed in the State Library, and that the work must be completed by the second Monday in January 1941. The amended answer pleads that the Act also violates § 1, Article 4, and §§ 32, 51 and 59, Article 5, Oklahoma Constitution, and a denial of the performance of the service by plaintiffs. We shall treat the questions raised in the order presented.

This Court is composed of nine Justices. When the Act was passed the salaries of six of the Justices was fixed at $7,500 per year (Section 3481, O.S.1931, 74 Okl.St.Ann. § 251, S.L.1936-7, c. 20, art. 1, p. 7, 74 Okl.St.Ann. § 251a). The salary of the three embraced in the Act was fixed at $5,000 per year under Chapter 138, S.L.1933. Every two years three Justices of this Court are elected to a six year term. The official duties of the several justices are the same. This unusual and unequal situation gives rise to the Attorney General's primary assault upon the Act. He contends the controlling motive in passing the Act was to unconstitutionally increase the salary and remuneration of the plaintiffs, in violation of Section 10, Article 23, which prohibits increasing the salary or emolument of any public officer by an act passed after his selection and during the term he was selected to serve. Our Legislature, unlike the National Congress, is entrusted with general authority to make laws at its discretion, subject only to restrictions found in the State and Federal Constitutions. State ex rel. Caldwell v. Hooker, 22 Okl. 712, 98 P. 964:

"It is not within the province of the judiciary to question the wisdom or motives of the lawmaking body in the enactment of a statute." State v. Johnson, 90 Okl. 21, 215 P. 945, 946; Sheldon v. Grand River Dam Authority, et al., 182 Okl. 24, 76 P.2d 355.

As was well stated in Commonwealth v. Moir, 199 Pa. 534, 49 A. 351, 353, 53 L.R.A. 837, 85 Am.St.Rep. 801, a similar case: "It ought not to be necessary to restate principles so fundamental, nor to cite authorities so familiar and so long established. But the range of the argument, and the energy with which it was pressed, have seemed to make it proper to set forth clearly the only question before the court, the constitutionality of the statute in question. Much of the argument and nearly all of the specific objections advanced are to the wisdom and propriety and the justice of the act, and the motives supposed to have inspired its passage. With these we have nothing to do. They are beyond our province, and are considerations to be addressed solely to the legislature."

In the case of John L. Love, Attorney General, v. Baehr, 47 Cal. 364, the Supreme Court of California in passing upon a very similar act held: "It is true, as suggested by counsel, that the Legislature might abuse its trust, and perhaps partially evade the constitutional prohibition, by contracting with these officers for the performance of trivial, non-official services, at an exorbitant compensation. But all legislative power is subject to abuse; and under our form of government, the only remedy is to be found at the ballot-box." Any other rule would permit the courts to hear evidence tending to establish the motive of the Legislature in passing any statute and place the very existence of the law upon a controverted question of fact.

Courts may not declare an act of the Legislature unconstitutional unless it clearly and plainly violates some express provision. In re Assessment of Walters Nat'l Bank, 100 Okl. 155, 228 P. 953; 6 R.C.L. 104; Cooley's Constitutional Limitations, 8th Ed., p. 351: "Now are the courts at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words. 'When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution.' * * *"

In Protest of Downing et al., 164 Okl. 181, 23 P.2d 173, 177, we said: "It is only where an act of the Legislature is clearly, palpably, and plainly inconsistent with the terms and provisions of the Constitution that the courts will interfere and declare such act invalid and void."

In Excise Board v. Chicago, Rock Island & Pacific Ry. Co., 168 Okl. 523, 34 P.2d 268, 271, it is said: "Statutes are not overthrown by courts because of the evil or asserted evil of their tendencies unless they are repugnant to some provision of the Constitution."

Does the Act increase the salary or remuneration of these public officials? It...