State ex rel. Breene v. Howard
| Decision Date | 12 February 1918 |
| Docket Number | Case Number: 9114 |
| Parties | STATE ex rel. BREENE, Chief Deputy Inspector of Oil and Gas, v. HOWARD, State Auditor. |
| Court | Oklahoma Supreme Court |
¶0 1. States -- Executive Offices -- Creation and Abolition -- Legislative Power.
The office of chief deputy inspector of oil and gas wells, created by chapter 207, laws 1913, p. 459, was not imbedded in the Constitution nor created in pursuance of any mandate thereof, but was purely a creation of the statute, and it was within the power of the Legislature to abolish the office by transferring the duties thereof.
2. Constitutional Law -- Legislative Power--Right to Question.
Relator, as chief deputy inspector of oil and gas wells, cannot urge the objection that the Legislature is without power to denude the office of chief mine inspector of any portion of the duties thereof with reference to the inspector of oil and gas.
3. Statutes -- Amendment by Reference -- Constitutional Provisions.
Chapter 207, Laws 1917, p. 385, does not purport to amend any prior law, but on its face appears to be an act in itself, and is not within the inhibition of article 5, § 57, Williams' Constitution, even though it seeks to effectuate the power conferred by reference to and requiring the officers thereby created to proceed in the performance of their duties in accordance with general laws formerly enacted.
Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
Mandamus by the State of Oklahoma, on relation of H. H. Breene, Chief Deputy Inspector of Oil and Gas, against E. B. Howard, State Auditor. Judgment for defendant, and plaintiff brings error. Affirmed.
Hainer, Burns & Toney and Stuart, Cruce & Cruce, for plaintiff in error.
S. P. Freeling, Atty. Gen., and J. I. Howard, Asst. Atty. Gen., for defendant in error.
¶1 The state, upon the relation of H. H. Breene as chief deputy inspector of oil and gas, commenced an action in the district court of Oklahoma county against E. B. Howard, as state auditor, praying a writ of mandamus directed to said defendant requiring him to audit and allow the claims of relator for salary and expenses as chief deputy inspector of oil and gas for the month of March, 1917. The auditor approved said claim up to and including March 17th, but refused to approve same for the remainder of said month for the reason that the duties pertaining to the office held by relator had been, by chapter 207, Session Laws 1917, p. 385, transferred to the oil and gas department thereby established under the jurisdiction and supervision of the Corporation Commission. Plaintiff had been appointed chief deputy inspector of oil and gas wells by the chief mine inspector and performed the services and incurred the expenses for which claim was filed. It is admitted that the claim had been duly approved by the chief mine inspector, and that there were sufficient funds in the hands of the state treasurer for the payment of same Judgment was for defendant, and plaintiff brings error.
¶2 It is first urged that relator is not an officer whose term, duties, and compensation are within the protection of the Constitution. but that he is an employe without a term, and therefore has no such right in the subject-matter of the legislation referred to as would entitle him to question the constitutionality thereof; and, further, that even if he be an officer he has no property rights in the office, nor to the compensation attached thereto, and therefore cannot assail the validity of such legislation.
¶3 Article 6, § 25, Williams' Constitution, is as follows:
¶4 Article 6, § 26, is as follows:
"The Legislature shall create mining districts and provide for the appointment or election of assistant inspectors therein, who shall be under the general control of the chief mine inspector, and the Legislature shall define their qualifications and duties and fix their compensation."
¶5 Section 13 of the schedule, among other things, provides:
"* * * The chief mine inspector shall also perform the duties required by laws of the territory of Oklahoma of the territorial oil inspector until otherwise provided by law."
¶6 Article 6, § 25, creates the office of chief mine inspector, and this office is embedded in the Constitution, but the duties to be performed by that officer are to be prescribed by the Legislature.
¶7 Article 6, § 26, commands the Legislature to create mining districts and provide for the appointment or election of assistant inspectors therein, and declares that said assistant inspectors shall be under the control of the chief mine inspector, and requires the Legislature to define their qualifications and duties and to fix the compensation which they are to receive, and section 13 of the schedule imposes upon the chief mine inspector the performance of the duties delegated to the territorial oil inspector at the time the Constitution was adopted.
¶8 Pursuant to the mandate of article 6, § 26, the Legislature of the state at its first session, chapter 54, Session Laws 1907-08, p. 521, and in article 2 of said chapter prescribed the duties and qualifications of the chief mine inspector, created three mining districts and provided for the election therein of assistant inspectors (sections 3949, 3950, Rev. Laws 1910), and prescribed their qualifications and the compensation to be received by them. lator was not one of these, but his office was created by chapter 207, Laws 1913, p. 459.
¶9 The office held by relator, to wit, chief deputy inspector of oil and gas wells, is not named in the Constitution, neither is any provision made therein for the creation of such office, and therefore the office, when created, was purely a creation of the statute, and it was within the power of the Legislature to increase or diminish the duties of such office and the compensation attached thereto. And the Legislature could, in its discretion, abolish the office at will or transfer all, or any portion, of the duties thereof to some other office or department if not prohibited by the Constitution.
¶10 In a number of cases it has been held that county, deputy county, or other municipal officials are not officers with a term, but are employes without a term. Board of Com'rs v. Hart, 29 Okla. 693, 119 P. 132, 37 L.R.A. (N. S.) 388; State ex rel. Reardon v. Harper, 33 Okla. 572, 123 P. 1038; State ex rel. Matlack v. Oklahoma City, 38 Okla. 349, 134 P. 58; Town of Luther v. Crossley, 45 Okla. 611, 146 P. 583. And it has been held that the duties of such officers may be diminished or entirely taken away at the will of the power which created them. Town of Luther v. Crossley, supra.
¶11 In Insurance Co. of North America v. Welch, 49 Okla. 620, 154 P. 48, it was held to be within the power of the Legislature to create an insurance board and delegate thereto the duty of seeing to the execution of the laws of the state then in force, or that may be thereafter passed in relation to insurance and insurance companies doing business in this state. This was so because the Constitution did not define the duties of the insurance commissioner, but established an insurance department and left to the Legislature the detail of prescribing the duties to be performed by the insurance commissioner. The distinction between that case and this lies in the fact that the insurance board created was a part of the insurance department, and that the duties delegated to the insurance board thus created were not transferred to another department of the state government. The decision is in point, however, upon the principle that the Legislature may define the duties attached to an office where such authority is delegated by the Constitution.
¶12 The law must necessarily be so because officers are nothing more than the agents of the state for effectuating the public purposes for which the state was created, and the power to create or abolish offices was intended to further the public convenience and necessity, and so too are the duties which are delegated to them. If the power of the Legislature, in the absence of constitutional prohibition, to abolish an office when the necessity therefor has ceased to exist be denied, progress and improvement in government according to the needs of the times would be arrested, and the state would inevitably become a great pension establishment upon which to quarter a host of sinecures. It would be impossible to arrange the different branches of state government in accordance with the needs thereof except by the slow and cumbersome method of constitutional amendment, and no government could be competent, or perfect, in the absence of a power to enact and repeal laws and to create change or discontinue the agents through whom the execution of these laws is secured. Such power is and will be indispensable for the preservation of the body politic and the safety of the community itself. Butler v. Commonwealth, 10 HOW 402, 13 L. Ed. 472; Taylor v. Beckham, 178 U.S. 548, 20 S. Ct. 890, 1009, 44 L. Ed. 1187.
¶13 It was therefore within the power of the Legislature to increase or diminish the duties of the office held by relator, or to transfer the duties thereof to some other officer, unless prohibited by the Constitution, even though such transfer had the effect of abolishing said office. Mechem on Public Officers, §§ 463-465.
¶14 The question whether it was within the power of the Legislature to denude the office of chief mine inspector of the duties transferred by the act is a question in which relator has no interest, and is therefore not presented for our consideration and we express no opinion thereon. It is an established rule that the Supreme Court will not pass...
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