Phelps v. Childers , 184 Okla. 421 ( 1939 )

This is an action in mandamus filed by the plaintiffs against the defendants, the State Auditor and State Treasurer, to require said defendants to receive, file, approve, and pay their claims for services performed by them under authority of House Bill No. 239, which bill, including the title, is in words and figures as follows:

"An Act making it the duty of certain Justices of the Supreme Court to prepare an annotated compilation of all laws of this state relating to civil and probate procedure, together with proper explanatory notes thereon, same to be filed in the State Library as a public record, subject to inspection and publication; providing for the continuation of such annotated compilation and explanatory notes: requiring acceptance of provisions of act; fixing the compensation of said Justices for said services.

"Section 1. Supreme Court — Procedural Statutes — Annotation.

"Inasmuch as the laws of Oklahoma on civil and probate procedure, including procedure relating to appeals to the Supreme Court, are, by reason of the many apparently conflicting and ambiguous provisions relating thereto which have been enacted since the adoption of the Revised Laws of Oklahoma of 1910, in such a state of confusion and uncertainty that in many cases the rights of litigants and of parties affected are prejudiced, impaired, or destroyed, which condition can be most properly remedied by the preparation and publication of an annotated compilation of said laws and proper explanatory notes thereon, it shall be the duty of the Justices of the Supreme Court of Oklahoma who were elected at the regular general election held on November 6, 1934, to prepare, in such manner as they deem proper, an annotated compilation of all such laws, including all laws enacted by the Fourteenth, Fifteenth and Sixteenth Legislatures of Oklahoma; said compilation and annotations to be supplemented by proper explanatory notes, which compilation shall be filed in the State Library as a public record, and as such shall be subject to inspection by the public and to publication by any responsible law book or other publishing company. Said annotated compilation and explanatory notes shall be, from time to time, supplemented by said Justices so as to include any changes occasioned either by legislative enactment or judicial interpretation; provided that said compilation shall be completed and said supplemental services terminated by the second Monday of January, 1941; provided further that before said Justices shall be authorized or required to perform the services defined by this act, same to be performed so as not to interfere with their regular official duties, they shall each file a certificate in the office of the Secretary of State setting forth their willingness to perform said services.

"Section 2. Salary.

"Each of said Justices of the Supreme Court shall receive as compensation for the services required by this act an annual salary of $2,500.00, payable monthly.

"Approved May 22, 1937."

The constitutionality of this act has been raised by the Attorney General, on behalf of the defendants. If this act is constitutional, the writ of mandamus should issue, and the claims of the plaintiffs paid. If the act is in violation of the Constitution, the writ should be denied. Therefore, the question before the court is to determine the constitutionality of this act. To determine this, it will be well to first consider the logical steps leading to the passing of said Bill No. 239 by the Legislature.

First: "Until changed by the Legislature," the Constitution, under section 16, Schedule, fixes the salary for each of the Supreme Court Justices at $4,000 per annum. The Legislature by House Bill No. 290 (1919 Session) fixed the salary for thefirst time after the adoption of Constitution and construed section 10, article 23, in connection with section 16 of the schedule. The Legislature "having once exercised the right, thereafter the right to change such a salary a second time falls within the general provision of the Constitution as set out in section 10 of article 23." The Legislature in House Bill No. 517, approved May 1, 1933, provided for a salary of $5,000 per year for each Justice of the Supreme Court. The three Justices and plaintiffs in this case were elected as Justices of the Supreme Court after this act was approved and in effect and are therefore entitled to the salary provided therein. Their election being at the regular general election of November 6, 1934, hence they began their services and are serving as Justices under the salary fixed by this act at $5,000 per year each. Their term expires in January, 1941.

Thereafter the Legislature by House Bill No. 21, approved January 4, 1937, fixed the salary of each Justice of the Supreme Court at $7,500 per year. Under this act, for all Justices elected since its approval, there can be no dispute as to their right to the salary of $7,500 provided therein. In this connection it will be observed that six Justices are now receiving salary of $7,500 and three Justices are receiving a salary of $5,000.

The Attorney General contends that this House Bill No. 239, quoted in full at beginning of this opinion, is an act intended to equalize the salaries of the Justices, and is in violation of section 10 of article 23, which 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."

— and also is in violation of section 32, article 5, which provides:

"No special or local law shall be considered by the Legislature until notice of the intended introduction of such bill or bills shall first have been published for fourconsecutive weeks in some weekly newspaper published or of general circulation in the city or county affected by such law, stating in substance the contents thereof, and verified proof of such publication filed with the Secretary of State."

— and in violation of section 51 of article 5, which provides:

"The Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this state."

— and in violation of section 59 of article 5, which provides:

"Laws of a general nature shall have a uniform operationthroughout the state, and where a general law can be made applicable, no special law shall be enacted."

— and in violation of section 55 of article 5, which provides:

"No money shall ever be paid out of the treasury of this state, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum."

— and in violation of section 1 of article 4, which provides:

"The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."

— and in violation of section 34 of article 5, which provides:

"Every bill shall be read on three different days in each House, and no bill shall become a law unless, on its final passage, it be read at length, and no law shall be passed unless upon a vote of a majority of all the members elected to each House in favor of such law; and the question, upon final passage, shall be taken upon its last reading, and the yeas and nays shall be entered upon the journal."

— and in violation of section 3568 of 1931 Statutes, which provides:

"It shall be unlawful for the State Auditor to issue or draw any warrant in disbursement of the Public Building Fund, Section 13 Funds, New College Funds, Game Protection Fund, General Revenue Fund or any other state fund or funds under the management of the state, except in pursuance of an appropriation act in which the amount appropriated shall be distinctly specified and stated. Provided, no warrant shall be issued by the State Auditor in disbursement of any moneys appropriated out of any of the funds above mentioned after two and one-half years from the date of the passage of any such appropriation act. And provided further, that in event of the issue by the Auditor of any warrant without an appropriation having been first provided for such purpose by the Legislature, or in excess of the amount appropriated, the same shall not be a charge against the state or paid from its funds, but shall be a charge against the Auditor and his bondsmen."

To determine the constitutionality of House Bill No. 239, the court must examine into its effect and the results it was intended to accomplish and ascertain the intent and purpose of the Legislature in passing said act. If this act is in violation of any of the above constitutional provisions, then said act should be held unconstitutional. The court in passing on the validity of this act must endeavor to obtain the true intent, purpose, and effect of the act and has a right to look to the face of said act to help determine this.

The constitutionality of an act depends on its real character and on the end designed to be accomplished rather than on its title or the professions as to its purpose which may be contained in it, and such declarations do not conclude the court. The court should endeavor to determine the true purpose and effect of said act. The court is not limited to the letter of the law, or mere form, nor should be misled by mere pretense, or subterfuge. The court should look to, or determine what may be done under and by virtue of said act, that is, its effect.

Turning to the act, we observe these elements which in our judgment show conclusively said act was intended by the Legislature to be an act raising the salary of these three Justices, plaintiffs herein, from $5,000 per year to $7,500 per year, thus equalizing the salary with the remaining members of the court.

Let us now examine said House Bill No. 239 and see if it shows on its face this intent and effect.

First: The salary of $2,500 fixed in this bill is the exact difference between the salary of the present six members of the court and the three plaintiffs herein. It takes this amount to equalize the salaries. This compensation means $208.33 1/3 per month. It appears to me this is rather an odd amount. Few, if any, monthly payments provided in acts of Legislature fix odd monthly payments. $208.33 1/3 was the exact amount necessary to equalize the salaries.

Second: This salary provided in said act is payable monthly although the bill provides for service for a lump job or duty to be performed.

This is very significant. In the business world do you know of anyone employed to do what we call a "turn-key" or finished job who is paid monthly, without any consideration as to the amount of work done or performed on said job? This act authorized a salary payable monthly. The act also provides that when the compilation and annotation is completed it shall be filed in the State Library, and shall be done by January, 1941. This is a definite "turn-key" job. If the plaintiffs can complete this work in 30 days or six months, they are not required, under this act, to file same in the State Library until the second Monday in January, 1941.

Third: The act provides that "it shall be the duty of the Justices of the. Supreme. Court of Oklahoma, who were electedat the regular general election held on November 6, 1934, toprepare," etc. The record, of which this court must take judicial notice, reveals that the plaintiffs in this case are the ones intended for said duty. The act specifically providing that the members of the court regularly elected in the general election held on November 6, 1934. No other members of the Supreme Court can qualify under this bill and receive thesalary provided therein. No other individuals in the state can qualify under this bill and receive the salary providedtherein. This specifically and definitely fixes but three members of the Supreme Court and these three members are the members drawing a salary of $5,000 per year each.

The Supreme Court is composed of nine members and may properly be considered as a class. What substantial difference distinguishes these three Justices from the other six Justices?

In my humble opinion, the fact that these three Justices were elected November 6, 1934, does not place them in a"class" such that discrimination may not be considered. Creating a "class" by legislative act must not be arbitrary or capricious, and must not be used as a subterfuge for the purpose of passing a special law under the form of a general law.

Fourth: The act further provides that their services shall terminate the second Monday in January, 1941. It is significant that this date is the exact date upon which the plaintiffs' services as Justices terminate. In other words, their salary, if re-elected, would be fixed by law thereafter at $7,500 per year.

Fifth: The beginning of their duties under this act was the very day that this purported act became effective.

Sixth: On the face of the title of this bill we find these words: "An Act making it the duty of certain Justices of the Supreme Court to prepare," etc. There on the face of the title of said act we have the word certain, meaning without question a part or a select few of the members of the Supreme Court.Certain Justices of the Supreme Court shall do the duty provided in this bill. This does not mean all the Justices. Thecertain members of the Supreme Court were those elected at the regular general election held on November 6, 1934. These Justices alone are the Justices of the Supreme Court who are entitled to draw the $2,500 per year each, if this act is valid. This act of the Legislature has selected certain Judges and definitely determined who they are.

It is certain that the certain Justices are the three plaintiffs. The other six members are not to be considered in this duty to be performed. This is an arbitrary discrimination, too plain for repudiation, notwithstanding the holding of the majority opinion herein. This "three member class" is a class discrimination, and is a subterfuge without precedence.

Seventh: This court must take judicial knowledge of House Bill No. 444, being an act authorizing the Board of Governors of the State Bar of Oklahoma to proceed with the proper and necessary steps leading to a complete revision of the laws of the State of Oklahoma; to make annotations, surveys and drafts of needed changes in the statutory laws of the State of Oklahoma; and to make contracts for carrying out the purposes therein set forth and made an appropriation of $35,700.11 to carry out this purpose. This act was approved (with emergency section) May 22, 1937, which was the same day House Bill No. 239 was approved. The duty conferred on the Board of Governors covers all the duties conferred in House Bill No. 239. The intent and purpose of the Legislature in the passing of these two bills cannot be construed from any reasonable interpretation except that Bill No. 444 was intended for the Board of Governors to do a certain duty in reference to the revision of the Statutes, and the other Bill, No. 239, was intended as an increase in salary to equalize the compensation of all members of the Supreme Court. No evidence has been submitted showing plaintiffs have performed any work under said act. There is no penalty provision compelling the work to be done, just so it is finished by 1941. The state makes no such contracts advancing full, or near so, consideration, or compensation without service rendered or material furnished.

Eighth: The court must take judicial knowledge of Senate Bill No. 249, which provides for the appointment of a legal assistant to each of the Justices of the Supreme Court, at a salary of $4,000 each per year, payable monthly, and in section 2 of said act, for the appointment of additional legal assistance for each Justice of the Supreme Court for a period of two years at a salary of $3,600 each per year, payable monthly. This act was approved May 5, 1937, 17 days prior to the approval of House Bill No. 239.

Certainly no other conclusion can be drawn than that the duty of these Justices was more than they could perform and this additional help was given them. If this is true, then it is difficult for me to understand why the Legislature should confer upon these three members additional duties (House Bill No. 239) to perform, for which they are to pay a salary to each of $2,500. If the duties of all members of the Supreme Court were overtaxed, why and under what theory of justice and common sense would the Legislature confer additional duties on three members of said court? If you are doing all the work you can do, how can you do more? The members of the Legislature were cognizant of Act 249 when they passed House Bill No. 239. They were also cognizant of Act 444, which was approved the same day and set out the same and overlapping duties to be performed. Without question, I believe House Bill No. 239, under these circumstances, was truly intended to equalize the salary of the Justices.

Ninth: There is no provision in the bill providing for continuation of the work if one member should resign. The duty conferred under this act, if valid and reasonable, requires the services of three Justices to perform this act. I am wondering what position would exist if two members should resign, leaving the entire undertaking to be performed by one remaining Justice. Surely, this would be inequitable for one man to perform the duty that the Legislature had authorized three men to perform.

These nine members are full time employees or officers of the state. Any nongermane duty performed by three members would by necessity take some time or thought from their official duty, and add extra duty to the remaining six members. This would be inequitable and unfair and cause discontent.

The court must not only look to the intent and purpose of an act, but to the effect of said act.

After reading and analyzing House Bill No. 239, the intent, purpose, and effect of said act is obvious. The act must and can only be considered as an act to equalize the salary of the plaintiffs in this case with the other Justices of the court.After reaching this conclusion, then without question, the act is in violation of section 10, article 23, which 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."

By the great weight of authority the court is empowered to look to the face of the bill to determine the intent, purpose, and effect of an act.

From 6 Ruling Case Law, section 79, page 81, we have these general principles laid down:

"In passing on the constitutionality of a statute, it is frequently important to examine into its effect and the resultsit was intended to accomplish, as, for instance, whether a state statute invades the domain of federal authority. In ascertaining the intention the courts may also look at the consequences of a particular interpretation. The constitutionality of an act depends rather on its real character and on the end designed to be accomplished, than on its title or to the professions as to its purpose which may be contained in it, and therefore such declarations do not conclude the courts. The general rule therefore is, in whatever language a statute may be framed, its purpose and its constitutional validity must be determined by its natural and reasonable effect."

6 Rawle C. L., sec. 80, p. 81, also lays down this general rule in determination of the intent and effect of an act of the Legislature:

"It has been said that the eyes of the courts are never limited to the mere letter of a law, but that they may look behind the letter to determine its true purpose and effect. Accordingly the principle has been laid down that the courts are not bound by mere forms, nor are they to be misled by mere pretenses, but they must look at the substance of things, whenever they enter on the inquiry whether the Legislature has transcended the limits of its authority. It is not necessary to impute bad motives to the Legislature in order to render a statute unconstitutional, it being not the motive causing the enactment, but its effect, which will determine the question of constitutionality. The question as to the constitutionality of an act is to be determined, not by what has been done under it in any particular instance, but by what may be done under and by virtue of its authority. In some cases, however, the courts may properly have recourse to an assumed state of facts in order to test the validity of a statute."

So in Soon Hing v. Crowley, 113 U.S. 703, 710, 5 Sup. Ct. 730:

"* * * The rule is general with reference to the enactments of all legislative bodies that the courts cannot inquire into the motives of the legislators in passing them, except as theymay be disclosed on the face of the acts, or inferrable fromtheir operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments."

In the case of State v. Smiley, 69 P. 199 (Kansas) was laid down the general rule of construction of statutes which appears to me to be good law. That court says:

"We construe the general words of our statute to be comprehensive only of those cases which are the rightful subjects of legislation of the kind in question. However, we disavow doing so merely in order to shelter the statute under the rule mentioned, but because the ancient established and wise canon of interpretation requires it to be done. Sporadic and anomalous cases indicating to the contrary may be found, as they may be found to the contrary of every settled accepted doctrine of the law; but the rule that the general words of statutes will be restricted in application to cases presumptively within the legislative intent has been so long accepted as a cardinal principle that its occasional denial, even by the most learned of courts, fails utterly of adverse impression. It happens in two sorts of cases that it is necessary to interpret the laws. One is when we find in a law some obscurity, ambiguity or other defect of expression; for in this case it is necessary to interpret the law in order to discover its true meaning. And this kind of interpretation is limited to the expression, that it may be known what the law says. The other is when it happens that the sense of a law, how clear, however, it may appear in the words, would lead us to false consequences, and to decisions that would be unjust, if the laws were indifferently applied to everything that is contained within the expression; for in this case the palpable injustice which would follow from this apparent sense obliges us to discover by some kind of interpretation, not what the lawsays, but what it means, and to judge by its meaning how far it ought to be extended, and what are the bounds that ought to be set to its sense."

The point in this case is "not what the law says, but what it means," not what the wording of Act No. 239 says, but what its real meaning and effect is, that is the question.

In the case of State ex rel. Owen v. Carter, State Auditor,77 Okla. 28, 186 P. 454, we have a very carefully considered opinion construing section 10, article 23, of the Oklahoma Constitution, and very forcefully states the purpose of said constitutional provision. The court says:

"It is a familiar principle of law that language used in a Constitution must be construed in its common accepted sense, and that every effort should be exercised to hold the acts of the Legislature constitutional unless they are clearly in violation of a prohibition of the Constitution. The court feels that effect must be given to the manifest intention of the framers of the Constitution when they provided in section 16 of the Schedule for temporary salaries of Justices of the Supreme Court and district judges, to continue until changed by the Legislature, and that there is no limitation upon the right of the Legislature to so change said salaries at any time, whether during the term of office of an incumbent or prior to the beginning of said term, and that the only limitation upon the right of the Legislature to so change said salaries is that,having once exercised the right, thereafter the right to changesuch a salary a second time falls within the general provisionsof the Constitution as set out in section 10 of article 23."

In paragraph 4 of the syllabus it is said:

"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."

The Attorney General has very forcibly said:

"If the salary and emoluments of three Justices may be increased by legislation such as that contained in House Bill No. 239, the salary and emoluments of all nine of the Justices could be increased by similar legislation. The purpose and intent of section 10, article 23, Oklahoma Constitution, as it relates to the judiciary, being to remove any possible influence the legislative branch of government might have over the judicial branch by reason of a power to increase or decrease the compensation of members of the judiciary, the intent and purpose of said section of the Constitution is violated if the Legislature is permitted to increase the compensation of members of the Supreme Court by conferring authority upon members of the court to perform additional duties not germane to the duties of their offices for such additional compensation. The defendants contend that the purpose and intent of section 10, article 23, of the State Constitution cannot be circumvented in any such manner. To permit it, is to nullify said section of the Constitution and render the restriction therein expressed a farce."

In support of the above, attention is called to the case of Trapp, State Auditor, v. Cook Construction Company,24 Okla. 850, 105 P. 667, wherein the court held:

"A thing within the intent of a constitutional enactment is, for all purposes, to be regarded within the words and terms of the Constitution; and a legislative enactment, evading the terms and clearly expressed or necessarily implied purposes of the Constitution, is as clearly void as if in express terms forbidden."

In determining the intent and purpose of House Bill No. 239, this court may and should look at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the lawmakers. In the case of De Hasque v. Atchison, T. S. F. Ry. Co., 68 Okla. 183, 173 P. 73, the court held:

"Among other things which may be considered in determining the intent of the lawmakers is the evil which it is designed to remedy; and therefore this court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the lawmakers."

The Legislature was confronted with an unequal situation upon the Supreme Court. Six Justices received salaries of $7,500 per year each, and three Justices received salaries of only $5,000 per year each. To remedy this situation the Legislature sought to evade the prohibition in section 10, article 23, of the State Constitution against increasing the salary or emoluments of said three Justices during their present terms of office by providing extra nonjudicial duties and additional compensation at the rate of $2,500 per year for each of said three Justices who were receiving only $5,000 per year. It is significant that these three particular Justices were selected to do the work. It is significant that House Bill No. 239 specifically provided that the services and the additional compensation therein provided for said three Justices shall terminate by the second Monday of January, 1941, when their terms of office as Justices of the Supreme Court expire. Bearing all of the facts surrounding the passage of this bill in mind, it is plain that the Legislature attempted to circumvent the above constitutional prohibition when it enacted House Bill No. 239. It is plainly evident that the prime purpose of House Bill No. 239 was to increase the compensation of said three Justices so that their salaries and emoluments would equal that of the other six Justices. This being the primary purpose of the act, it violates both the letter and the spirit of section 10, article 23, of the Oklahoma Constitution. Said section states:

"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."

The above is stronger language than is found in most Constitutions. It states that in no case shall the salary or emoluments of any public official be changed after his election or during his term of office except by operation of a law enacted prior to his election.

House Bill No. 239 was enacted during the present existing terms of office of the plaintiffs as Justices of the Supreme Court. The word "emolument" is more comprehensive than the word "salary," and includes gain, profit, compensation, et cetera. Words and Phrases, vol. 3 (First Series, P. 2367); vol. 2 (Second Series) p. 259; Webster's New International Dictionary. House Bill No. 239 specifically designates these public officials, plaintiffs in this case, to receive compensation that such public officials did not theretofore receive. House Bill No. 239 provides that "the Justices of the Supreme Court of Oklahoma who were elected at the regular general election held on November 6, 1934," shall receive this additional compensation. If House Bill No. 239 is sustained as valid, then this is a case where the emoluments of a public official have been increased by a law enacted after his election and during his term of office, although section 10, article 23, Oklahoma Constitution, states that in no case shall the emoluments of a public official be changed after his election or during his term of office unless by operation of a law enacted prior to such election.

In the case of Thomas et al. v. Reid, 142 Okla. 38,285 P. 92, the court held:

"All legislative enactments must be in harmony with the spirit of the Constitution, and no legislative act may curtail the rights reserved by the Constitution to the people."

In the opinion in this last case the court quoted the following with approval from the case of State ex rel. Smyth v. Moore, 55 Neb. 480, 76 N.W. 175:

"An act violating the true intent and meaning of the instrument although not within the letter is as much within the purview and effect of a prohibition as if within the strict letter; and an act in evasion of the terms of the Constitution, as properly interpreted and understood, and frustrating its general and clearly expressed or necessarily implied purposes, is as clearly void as if in expressed terms forbidden. A thing within the intent of a Constitution or statutory enactment is, for all purposes, to be regarded as within the words and terms of the law."

From these authorities it is obvious that the court owes the duty to carefully read, analyze, and determine the purpose, intent, and effect of the legislative act, and having reached the conclusion that said act No. 239 is in violation of article 10, section 23, of the Constitution, it would seem useless to further discuss this case. Proceeding further, however, I am of the opinion that House Bill No. 239 is a special act and in violation of section 59 of article 5.

Our Supreme Court in the case of Wilkinson v. Hale,184 Okla. 165, 86 P.2d 305, handed down January 10, 1939, by Justice Davison, discussed very logically the constitutionality of an act of the Legislature which I think is analogous and applicable to the case at bar. The law and facts set forth in the opinion are so precise and definite that I shall copy herewith the entire opinion as follows: