State ex rel. Nesbitt v. District Court of Mayes County

• Decision Date: 07 November 1967
• Docket Number: 40865,Nos. 40844,s. 40844
• Citation: 1967 OK 228,440 P.2d 700
• Parties: The STATE of Oklahoma ex rel. Charles NESBITT, Attorney General of Oklahoma, Plaintiff, v. The DISTRICT COURT OF MAYES COUNTY, State of Oklahoma and John Q. Adams, Judge of the District Court of Mayes County, State of Oklahoma, Defendants. Marguerite BILLINGTON, Court Clerk of Mayes County, State of Oklahoma, Plaintiff in Error, v. L. L. WEAVER, Sheriff of Mayes County, Thos. E. Landrum, County Attorney of Mayes County, and Creekmore Wallace, County Judge of Mayes County, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 700

440 P.2d 700

1967 OK 228

The STATE of Oklahoma ex rel. Charles NESBITT, AttorneyGeneral of Oklahoma, Plaintiff, v.The DISTRICT COURT OF MAYES COUNTY, State of Oklahoma and

John Q. Adams, Judge of the District Court of

Mayes County, State of Oklahoma, Defendants.

Marguerite BILLINGTON, Court Clerk of Mayes County, State of

Oklahoma, Plaintiff in Error,

v.

L. L. WEAVER, Sheriff of Mayes County, Thos. E. Landrum,

County Attorney of Mayes County, and Creekmore

Wallace, County Judge of Mayes County,

Defendants in Error.

Nos. 40844, 40865.

Supreme Court of Oklahoma.

Nov. 7, 1967.

As Corrected May 14, 1968.

Rehearing Denied May 14, 1968.

Syllabus by the Court

1.In order to be general in its nature and to have uniform operation, as contemplated by Art. 5, § 59, Okl. Const., a law need not be universal in its application and operate the same in every section of the State and upon all persons alike; the Legislature may classify for legislative purposes, but the classification adopted must be neither arbitrary nor capricious and must bear a rational relation to the object sought to be accomplished.

2.Invalid local or special laws rest on a false or deficient classification.Their vice is that they do not embrace all the class that they should naturally encompass.They create preference and establish inequality.They apply to persons, things and places possessed of certain qualities or situations and exclude from their effect other persons, things, or places which are not dissimilar in this respect.

3.While Art. 5, § 32, Okl. Const., requires the Legislature to publish notice in a specified manner before the intended introduction of a special or local act, it does not authorize enactment of such laws upon subjects expressly prohibited by Art. 5, § 46, Okl. Const.

4.When the Attorney General properly participates, at the request of the Governor, in a cause in which the State is interested, as provided in 74 O.S.1961, § 18(c), he assumes complete dominion of the litigation and may bring an appeal to this court even though a nominal party-litigant elects to abide by the trial court's judgment.

Appeal from the District Court of Mayes County; John Q. Adams, Judge.

Appeal from judgment directing the court clerk, in a mandamus proceeding, to allow claims of county officials seeking payment of additional salary from local court fund; consolidated for disposition with original proceeding for writ prohibiting trial judge from enforcing judgment.Reversed and remanded with directions to deny the writ of mandamus.

Charles Nesbitt, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for plaintiff and plaintiff in error.

Thomas A. Wallace, Sapulpa, for defendants and defendants in error.

McINERNEY Justice.

The principal question for decision in this consolidated cause is the constitutionality of H.B. 953 of the Twenty-Sixth Legislature, S.L. 1957, p. 109.This act, which bears an emergency clause, became law on May 21, 1957.It provides in substance that the county attorney, county judge and sheriff of each county of the state having a population of not less than 20,000 nor more than 20,400 as shown by the last preceding federal decennial census, and an assessed valuation of at least $15,000,000.00 shall receive, in addition to their regular annual salaries fixed by general law, a specified monthly stipend from the court fund of the county for the performance of certain non-germane duties imposed in the act.

By his opinion of October 21, 1957, the Attorney General separately considered the constitutionality of H.B. 953(along with 98 similar acts passed by the 1957Legislature) and declared it to be 'an invalid local and special law.'Its provisions have been carried neither into the official 1957 Cumulative Supplement to Oklahoma Statutes 1951 nor into the Oklahoma Statutes 1961(adopted Jan. 29, 1963 by the enactment of 75 O.S.Supp. 1963, § 164).In the tables contained in Volume 3 of the Oklahoma Statutes 1961the act under consideration is identified (at p. 1032) by a citation to the 1957 Session Laws and by note 'Loc. & Spec.'(local and special).The appendix to Title 19 of the Oklahoma Statutes Annotated, entitled 'Local and Special Acts', contains the title of H.B. 953 (at p. 588) which is followed by a citation to the 1957 Session Laws and the note 'This act held invalid.Op.Atty.Gen., Oct. 21, 1957.'.

The court takes judicial notice that at the time of the enactment of H.B. 953, only Jackson County met the narrow standards prescribed by its provisions.That count, according to the 1950 federal decennial census (which last preceded the passage of H.B. 953) had a population of 20,082; its assessed valuation for that year was $15,485,757.00.

For the purpose of deciding the principal issue herein we will assume that if the bill under consideration is free from constitutional infirmity Mayes County came within its purview when the 1960 federal decenial census became effective.According to that census Mayes County had a population of 20,073; its assessed valuation for 1960 was in excess of $15,000,000.00.

The provisions of Art. 5, § 59, Okl. Const., command that all '(l)aws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.'In order to be general in its nature and to have uniform operation a law must operate equally upon all the subjects within the class for which it was enacted although it may apply only to a designated class.But if a statute operates upon a class, the classification must be reasonable and pertain to some peculiarity in the subject-matter calling for legislation.It cannot be capricious or arbitrary.As between the persons and places Included within the class upon which the law operates and those Excluded from it there must be some distinctive characteristic warranting a different treatment and affording a practical and real basis for discrimination.Burks v. Walker, 25 Okl. 353, 109 P. 544;Roberts v. Ledgerwood, 134 Okl. 152, 272 P. 448, 449;Haas v. Holloman, Okl., 327 P.2d 655, 656.

Where a legislative act excepts from the operation of the general laws of this state one or more counties without any fixed basis for such discrimination and no reason appears why all should not be subject to the same rule, it is violative of Art. 5, § 59, Okl.Const.Hudgins v. Foster, 131 Okl. 90, 267 P. 645;Anderson v. Walker, Okl., 333 P.2d 570, 575.Local or special laws, as distinguished from those which are general and uniformly operative, are all laws that rest on a false or deficient classification.Their vice is that they do not embrace all the class that they should naturally encompass but extend only to persons arbitrarily selected from a body of those who stand in a substantially identical relation to the subject of the law.They create preference and establish inequality by applying to persons, things and places possessed of certain attributes and excluding from their effect persons, things and places with not dissimilar characteristics.Barrett v. Board of Com'rs of Tulsa County, 185 Okl. 111, 90 P.2d 442.In short, special laws prohibited by Art. 5, § 59, Okl.Const., are those which apply to less than the whole of a class of persons, things or places standing upon the same footing or in substantially the same situation or circumstances and hence do not have uniform application.Fenimore v. State ex rel. Commissioners of Land Office, 200 Okl. 400, 194 P.2d 852.The all important factor in determining whether a bill is local or general is the basis of classification contained in it.If the basis At the time of enactment is arbitrary, unreasonable and without proper foundation in relation to the subject matter, then the bill is tainted by constitutional infirmity and must be declared a special and local act.Roberts v. Ledgerwood, supra(p. 451).

While counties and cities may, for legislative purposes, properly be classified on the basis of population, or population coupled with some other factor, such as assessed valuation, the classification must not be arbitrary but founded upon real and substantial distinctions, bear some rational relation to the subject matter and be uniform and general in its application.Haas v. Holloman, supra, 327 P.2d p. 656;82 C.J.S.Statutes§ 191, p. 309.An arbitrary or capricious classification is regarded as a subterfuge for the purpose of passing a special act under the guise of a general law.Key v. Donnell, 107 Okl. 157, 231 P. 546, 549.

It appears unnecessary for us to delve here into the question of whether the bill under consideration was processed as a general law or was introduced and passed as a special act in compliance with the publication requirements of Art. 5, § 32.That question is irrelevant here.While Art. 5, § 32 requires the legislature to publish notice in a specified manner before the intended introduction of a special or local act, it Does not authorize the enactment of such laws upon subjects expressly prohibited by Art. 5, § 46. Sec. 32 simply provides a procedure to be followed in considering and passing local or special acts on subjects falling outside the prohibitory scope of § 46.The enactment of special or local acts expressly prohibited by § 46 is not to be deemed validated by compliance with the publication requirements of § 32.Chickasha Cotton Oil Co. v. Lamb & Tyner, 28 Ok. 275, 114 P. 333, 336;White v. Infield, 122 Okl. 4, 250 P. 81, 82;Wade v. Board of Com'rs of Harmon County, 161 Okl. 245, 17 P.2d 690, 692;Leach v. Board of Com'rs of Mayes County, 173 Okl. 270, 47 P.2d 596;Missouri-Kansas-Texas Railroad Company v. Coryell, Okl., 346 P.2d 935, 937.

The provisions of the act under consideration impose upon the affected officials duties which do not stand imposed on like officials in other counties of the state.By its terms the county attorney is required to 'prepare and file all legal papers and...