State v. Carter

• Decision Date: 19 December 1919
• Docket Number: 10913.
• Citation: 186 P. 454,77 Okla. 28,1919 OK 370
• Parties: STATE ex rel. OWEN v. CARTER, State Auditor.
• Court: Oklahoma Supreme Court

186 P. 454

77 Okla. 28, 1919 OK 370

STATE ex rel. OWEN v. CARTER, State Auditor.

No. 10913.

Supreme Court of Oklahoma

December 19, 1919

Syllabus by the Court.

Section 10, art. 23, of the Constitution, provides: "Except wherein otherwise provided in this Constitution, in no case shall the salary or emoluments of any public official be changed after his election or appointment, or during his term of office, unless by operation of law enacted prior to such election or appointment; nor shall the term of any public official be extended beyond the period for which he was elected or appointed: Provided, that all officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified." Held, that said section 10, art. 23, of the Constitution, must be construed with section 16 of the Schedule to the Constitution, when determining the constitutionality of chapter 204, Laws 1919, increasing the salaries of the Justices of the Supreme Court.

A Justice of the Supreme Court, who has been duly elected, has qualified and entered upon his term of office, is legally entitled to the increase in salary authorized by chapter 204, Laws 1919, for the reason that section 16 of the Schedule expressly provided that "the salary of the Justices of the Supreme Court of the state shall be four thousand dollars per annum, each, *** until changed by the Legislature."

By chapter 204, Laws 1919, salaries of Justices of the Supreme Court are "changed by the Legislature," and this change is authorized by section 10 of article 23 and section 16 of the Schedule to the Constitution.

The authority to change the salaries, during the term of office provided for in section 10 of article 23 and section 16 of the Schedule to the Constitution, same having been exercised the power thereunder is exhausted. Chapter 145, Session Laws 1917, is not a change of salaries of Justices of the Supreme Court.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Petition for mandamus by the State, on the relation of Thomas H. Owen against F. C. Carter, State Auditor. Judgment for respondent was rendered upon an agreed statement of facts, and relator brings error. Reversed, and writ granted.

S. W Hayes, of Oklahoma City, Geo. S. Ramsey, of Muskogee, E. G. McAdams, of Oklahoma City, John B. Turner, of Oklahoma City, and Geo. B. Rittenhouse, of Oklahoma City, for plaintiff in error.

S. P. Freeling, Atty. Gen., and C. W. King, Asst. Atty. Gen., for defendant in error.

LEDBETTER Special Judge.

Thomas H. Owen was elected Justice of the Supreme Court of Oklahoma at the general election of 1918 for a term of four years, and on the second Monday in January, 1919, he qualified as such Justice and entered upon the duties of his office, which he has since been discharging. For his services during the month of July, 1919, he presented to, and filed with, the defendant in error, F. C. Carter, State Auditor of the State of Oklahoma, his claim, duly verified, in the sum of $500, which was for his salary for the month of July, 1919, and demanded that the defendant in error approve the same and issue warrant therefor, which was refused; thereupon the question of plaintiff in error's right to demand and receive the salary was presented to the district court of Oklahoma county upon an agreed statement of facts, without suit first being filed, as is provided for in section 5303 of the Revised Laws of Oklahoma 1910, and the trial court rendered judgment against the plaintiff in error, from which judgment an appeal was taken to this court.

The record here presents the question as to the legal rights of a Justice of the Supreme Court of Oklahoma, elected or appointed before the enactment of the act entitled "An act fixing the salaries of Justices of the Supreme Court ***" (Session Laws of Oklahoma 1919, c. 204, p. 291), to demand and receive for his services the salary therein provided for.

Section 1 of chapter 204 of the Session Laws of 1919 is as follows:

"The salary of each Justice of the Supreme Court *** shall be six thousand dollars ($6,000.00) per annum, payable monthly, as provided by law."

In construing said section 1 of the Session Laws of 1919, supra, it becomes the duty of this court to construe section 16 of the Schedule to the Constitution in connection with section 10 of article 23 of the Constitution, it appearing that at no other time has this court had this identical question before it.

The relator is a constitutional state officer, whose office was created by article 7 of the Constitution. By section 3 of article 7 it is provided that the Supreme Court shall consist of five Justices, until the number shall be changed by law.

By Senate Bill No. 252 of the Session Laws of 1917 the number of Justices of the Supreme Court was changed to nine, but no change of salary was made.

By section 16 of the Schedule to the Constitution it is provided:

"The salary of the Justices of the Supreme Court of the state shall be four thousand dollars per annum, each, *** until changed by the Legislature."

By House Bill No. 290 of the Session Laws of 1919, supra, the salary of each Justice of the Supreme Court was changed from $4,000 to $6,000 per annum.

By section 10 of article 23 of the Constitution it is provided:

"Except wherein otherwise provided in this Constitution, in no case shall the salary or emoluments of any public official be changed after his election or appointment, or during his term of office, unless by operation of law enacted prior to such election or appointment," etc.

And it is insisted here that Senate Bill No. 290 of the Session Laws of 1919 is violative of the provisions of section 10 of article 23 of the Constitution of Oklahoma.

This court has in mind previous decisions of this court in Board of County Commissioners of Greer County v. Henry et al., 33 Okl. 210, 126 P. 761; Jones v. Louthan, 35 Okl. 407, 130 P. 139; Board of County Commissioners of Beaver County v. Culwell, 41 Okl. 712, 139 P. 979; Privett v. Board of County Commissioners of Grant County, 44 Okl. 523, 145 P. 323; Carrico et al. v. Couch et al., 45 Okl. 672, 146 P. 447; and Board of County Commissioners of Creek County v. Bruce et al., 51 Okl. 541, 152 P. 125, Ann. Cas. 1918E, 1060-and subsequent decisions construing the right of county officers to salaries in force at the date of their election or appointment, and is of the opinion that no utterance of this court in any of the cases referred to, or any following cases, is in conflict with the principles of law announced as referred to in this opinion, and in none of said opinions was the provision of section 16 of the Schedule of the Constitution of Oklahoma construed.

Section 1 of article 6 of the Constitution of Oklahoma, which created executive offices of the state, and fixed the qualifications and terms of office, covered the provisions for the same officers as those provided for in section 15 of the Schedule to the Constitution. Section 34 of article 6 of the Constitution provides that the salary of executive officers of the state shall not be increased or diminished during the term for which they shall have been elected. Section 49 of article 5 of the Constitution, relating to the legislative department, provides that the Legislature shall not increase the number or emoluments of its employés except by general law, which shall not take effect during the term at which said increase is made.

Article 7 of the Constitution of Oklahoma creates and provides for the judiciary department. This article contains no provision prohibiting the increase or diminishing of the salary of officers of the department during the term for which they were elected or appointed. Section 3 of article 7 provides that the Supreme Court shall consist of five Justices "until the number shall be changed by law," and in section 4 of article 7 provision for the length of term of their office is made.

It is contended by the respondent in this case that section 10 of article 23 of the Constitution of Oklahoma prohibits a change in the salaries of Justices of the Supreme Court during the term of office of any incumbent, and that section 16 of the Schedule to the Constitution, which provides that the salaries of Justices of the Supreme Court shall be $4,000 until changed by the Legislature, operates to prevent the Legislature from increasing the salary of any Justice during his term of office.

The court, in order to arrive at a conclusion as to whether the act of 1919 is violative of the provisions of the Constitution of Oklahoma relative to changes in the salaries of an officer, must take into mind established principles of construction which are aptly stated in United States v. Chase, 135 U.S. 260, 10 S.Ct. 757, 34 L.Ed. 117, wherein it is said:

"It is an old and familiar rule that 'where there is, in the same statute, a particular enactment and also a general one which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment.'

This rule applies wherever an act contains general provisions and also special ones upon a subject which, standing alone, the general provisions would include."

In 12 Corpus Juris, 709, § 507, it is said:

"When general and special provisions of a Constitution are in conflict, the special provisions should be given effect to the extent of their scope, leaving the general provisions to control in cases where the special provisions do not apply."

It should be noted that section 10 of article 23 of the Constitution clearly anticipates that...