Wimberly v. Deacon

Decision Date21 December 1943
Docket Number31578.
Citation144 P.2d 447,195 Okla. 561,1943 OK 432
PartiesWIMBERLY v. DEACON.
CourtOklahoma Supreme Court

As Corrected Jan. 12, 1944.

Syllabus by the Court.

1. The first rule for construing constitutional provisions, to which all other rules of construction are subordinate, is that the meaning, as understood by those who framed and adopted the constitution, is to be ascertained and given effect.

2. In construing constitutional provisions, the courts should give words appearing therein their plain, natural, and ordinary meaning.

3. When provisions have been adopted into a constitution which are similar to those in constitutions of other states, it will be presumed that the framers of the constitution were conversant with, and intended to adopt, the construction placed on such similar provisions in the other states.

4. The meaning of the constitution is the meaning intended by its framers and the people who adopted it. This meaning is fixed when the constitution is adopted and is not different at any subsequent time when a court has occasion to pass upon it.

5. A reserve officer in the Army of the United States, who has been called into active military service as a commissioned officer for the duration of the present World War and a period of not to exceed six months thereafter, and who has entered upon active military duty, is the holder of an office of profit and trust under the government of the United States within the meaning of Sec. 12, Art. 2 of the state constitution, which provides: "No member of Congress from this State, or person holding any office of trust or profit under the laws of any other State, or of the United States, shall hold any office of trust or profit under the laws of this State."

6. A member of the Board of Regents of the University of Oklahoma is the holder of an office of trust under the laws of this state within the meaning of Sec. 12, Art. 2, of the state constitution.

7. The provisions of Sec. 12, Art. 2, of the state constitution, are self-executing and fully operative so that the acceptance of the second or prohibited office operates ipso facto to absolutely vacate the state office first held.

8. A member of the Board of Regents of the University of Oklahoma who enters upon active military duty as a commissioned officer in the Army of the United States thereby, ipso facto vacates his civil office under Sec. 12, Art. 2, of the state constitution, and the Governor may thereupon immediately appoint a successor as authorized by 70 O.S.1941 § 1241 without awaiting a judicial determination of the existence of a vacancy.

Original action in the Supreme Court by Harrington Wimberly petitioner, against Erl Deacon, respondent, in the nature of quo warranto to settle conflicting claims to a membership on the Board of Regents of the University of Oklahoma.

Judgment for respondent.

GIBSON V. C.J., WELCH and ARNOLD, JJ., and CHAMBERLIN, Special Justice, dissenting.

Walter L. Gray and Rex Holden, both of Oklahoma City, for petitioner.

Dudley, Duvall & Dudley, of Oklahoma City, for respondent.

HURST Justice.

This is an action in the nature of quo warranto brought to settle conflicting claims to a membership on the Board of Regents of the University of Oklahoma. We have assumed original jurisdiction because of the public nature of the question involved.

Petitioner, Harrington Wimberly, alleges that he is the rightful holder of the office, that respondent Erl Deacon also makes claim thereto, and that as a result confusion and uncertainty exist as to the actual membership of the Board, all to the detriment of the University of Oklahoma. He prays that the rightful holder of the office be judicially determined. Respondent, Erl Deacon, by answer, asserts that he is the lawful holder of the office and joins with petitioner in requesting a determination of the controversy.

The facts are not in dispute. On March 23, 1942, C. O. Hunt, who then held a commission as a reserve officer in the Army of the United States, but who was not then on active duty, was appointed a member of the Board of Regents of the University of Oklahoma for a term which would ordinarily have expired March 23, 1949. On or about June 1, 1942, he was ordered into active military service, and, without resigning from his state office, entered upon military duty as a commissioned officer. On August 17, 1942, the then Governor of Oklahoma, assuming that a vacancy existed on said board by reason of Hunt's entry into active military service, appointed respondent to membership thereon under the authority to fill vacancies on said Board given him by 70 O.S.1941 § 1241. Respondent qualified and assumed the duties of the office. On June 25, 1943, however, Hunt filed his written resignation with the then Governor (successor to the Governor who had appointed respondent), who thereupon appointed petitioner to said office. Petitioner qualified and was received by the Board of Regents as a member thereof at its regular meeting on July 14, 1943.

It will thus be seen that the question of whether petitioner or respondent is entitled to the office depends upon whether Hunt, by entering into active military duty as a commissioned officer in the Army of the United States, thereby vacated his civil office.

Article II, Sec. 12 of our Constitution, provides: "No member of Congress from this State, or person holding any office of trust or profit under the laws of any other State, or of the United States, shall hold any office of trust or profit under the laws of this State."

Respondent contends (1) that a person on active duty as a commissioned officer in the Army of the United States is the holder of an office of trust and profit under the laws of the United States within the purview of said constitutional provision, (2) that the office of member of the Board of Regents of the University of Oklahoma is an office of trust or profit under the laws of this state within the purview of said constitutional provision, and (3) that under said constitutional provision the same person may not hold both offices at the same time, and that upon Hunt's entry into active military duty his civil office immediately became vacant.

On the other hand, petitioner contends that a reserve officer called into temporary active duty, and who intends to return to civil life upon the cessation of hostilities, is not the holder of an office of trust or profit under the laws of the United States within the purview of said constitutional provision; that membership on the Board of Regents is not an office of trust or profit under the laws of this state within the purview of said constitutional provision; that there is no common law incompatibility between serving as a reserve officer on temporary active duty in the Army of the United States and membership on the Board of Regents; and that, therefore, no vacancy existed at the time of respondent's appointment, and that such appointment was without authority and void.

At the outset of the consideration of this case, we point out that we are not, and must not be, concerned with the policy of the law as expressed in the constitutional provision. Only a question of law is presented, and the discussion of patriotic motives of public officers in our hour of national peril cannot and must not swerve us from correctly determining that question. If the giving up of a public office and its emoluments is necessary for the common good of all, such individual hardships may not be greater than the sacrifices of those countless thousands in private employment, who are called into military service, and who count not the cost to them in money, position, pain, suffering or sacrifice. The Constitution means the same in war as in peace.

Before discussing the three propositions argued by the parties, the meaning of this constitutional provision, we will briefly refer to some well recognized and applicable rules of construction that furnish a safe guide in connection with the interpretation and enforcement of constitutional provisions.

Those who frame statutes and constitutional provisions must always be presumed to be, and they generally are in fact, familiar with settled rules of statutory and constitutional construction, and they have a right to act on such rules and to expect the courts to follow them in construing and enforcing the same. And in order that there may be stability and certainty in the interpretation and enforcement of such provisions, as they are understood by those who frame them, the courts should scrupulously apply and follow such rules. To do otherwise is to run the risk of going contrary to the true meaning of such provisions, and to amend the statutes or constitution by judicial fiat.

The first rule, and the one to which all other rules are subordinate, is that the meaning of constitutional provisions, as understood by those who framed and adopted the constitution, is to be ascertained and given effect. Boswell v. State, 181 Okl. 435, 74 P.2d 940; 12 C.J. 700; 6 R.C.L. 52; 16 C.J.S., Constitutional Law, § 16, p. 51; 11 Am.Jur. 674.

Another rule is that words appearing in the constitution are to be given their plain, natural and ordinary meaning, and no hidden meaning should be looked for by the courts. Pawnee County Excise Board v. Kurn, 187 Okl. 110, 101 P.2d 614; 12 C.J. 703; 6 R.C.L. 52; 16 C.J.S., Constitutional Law, § 19, p. 56; 11 Am.Jur. 681.

Another rule is that when provisions have been adopted into the constitution of a state which are identical with or similar to those of other states, it will be presumed that the framers of the constitution were conversant with, and designed to adopt, the construction previously placed on such provision in other states. State ex rel. Tharel v....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT