Walton, Mayor v. Donnelly , 83 Okla. 233 ( 1921 )

I dissent from the interpretation of section 11, art. 2, of the city charter of Oklahoma City, as sanctioned by majority of the Justices of this court in the majority opinion, and on account of the interest manifested in the questions involved and the importance of the same to the public I have concluded to give the reasons for my dissent.

Under section 1, art. 2. of the city charter of Oklahoma City, which was adopted and approved under the authority of section 3-a, art. 17, of the Constitution, Oklahoma City has a commission form of government, and the governmental powers of the city are vested in five elective officers, designated as city commissioners, being the mayor, commissioner of public affairs, commissioner of public safety, commissioner of finance and accounting, commissioner of public works, and the commissioner of public property. In sections 4, 6, 7, 8, 9, and 10 of article 2, certain duties are assigned to the respective commissioners, and following the assignment of certain duties to the respective commissioners section 11 of article 2 of said charter provides:

"Board May Assign Duties to Other Departments. The board of commissioners shall have the power to assign duties not specifically named above to any department to which they may properly belong, and shall have power by a vote of four out of five commissioners to transfer duties from one commissioner and one department to another commissioner and another department."

I believe that the freeholders, who drafted section 11, art. 2, of the charter, supra, in plain and unmistakable language said Just what they intended to say and meant just what they said, and the majority opinion of the court has overlooked a sound and fundamental rule of construction of statutes and constitutions, and that is, that words in a statute, or any kind of written instrument, should be construed according to their ordinary sense and the meaning commonly attributed to them, unless such construction will defeat the manifest intention of the Legislature or the parties to the contract. In 25 R. C. L. par. 234, page 988, the rule will be found as follows:

"It is well settled that, in construing any statute, all the language shall be considered, and such interpretation placed upon any word or phrase appearing therein as was within the manifest intent of the body which enacted the law. The proper course in all cases is to adopt that sense of the words which best harmonizes with the context and promotes in the fullest manner the policy and objects of the Legislature, and the various rules and principles of interpretation hereinafter discussed are resorted to only as an aid to the courts in arriving at the true intent of the lawmaker. 'Every technical rule as to the construction or force of particular terms,' said Mr. Justice Story, 'must yield to the clear expression of the paramount will of the Legislature.' As a general rule the words of a statute will be construed in their ordinary sense and with the meaning commonly attributed to them, unless such construction will defeat the manifest intent of the Legislature, and express provision to this effect is found in the statutes of some states. This general rule of construction is applicable not only to civil, but to penal statutes."

This rule is uniformly supported by all of the text-writers and the appellate courts of every state in the Union and the Supreme Court of the United States. The citation to the decisions supporting this rule may be found in 25 R. C. L. pages 988, 989.

It is true that this is not an invariable rule where giving to the words in a statute or Constitution the construction of their ordinary sense would lead to conclusions which the Legislature did not contemplate, but in the case at bar it cannot be seriously contended that to give the word "duties" its ordinary meaning would lead to a conclusion which the drafters of the charter did not contemplate, but to give it the construction placed upon it that is adhered to by the court in its majority opinion leads to an absurdity and an injustice. If the contention of the plaintiff is correct, under section 11, art. 2, of the charter, three of the commissioners, being a majority, may create new duties and assign the same to any department that they deem proper, but if they decide to transfer these new duties which they have created and assigned, the votes of four commissioners off the five are required to make the transfer; or, according to their contention, it requires one more vote to transfer a duty they have created than it does to create the duty. Such a conclusion is not in harmony with reason, and the fallacy of it is apparent on its face. The same three commissioners voting to create a new duty undoubtedly would have the power to destroy, assign, or transfer the same duty, the creator being vested with authority to deal with his creature.

Counsel for the plaintiff in this cause contended in the oral argument and in their brief filed herein that see. 14, art. 2, supra, is one single sentence and that the first portion of the sentence specifically provides for the assignment to the proper department of a certain class of duties, to wit, duties not specifically mentioned in the previous sections of the charter, and that the latter part of the sentence provides that the commissioners by a vote of four out of five are vested with authority to transfer duties from one commissioner and department to another commissioner and department, but that section 11 being one single sentence, the duties referred to, which the commissioners are authorized to transfer from one department to another department, have reference only to the duties referred to in the first part of the sentence. A casual reading of section 11, art. 2, will show the error of this contention made by counsel for the plaintiff. Section 11, art. 2, is not one single sentence, but is a compound sentence composed of two simple sentences, and I do not deem it necessary to cite any authority to the effect that section 11, art. 2, is a compound sentence.

The first sentence of section 11, art. 2, in plain language authorizes the board of commissioners to assign duties not specifically mentioned above to any department to which they properly belong. This first simple sentence is plain and there is no room for construction; it means just what it says — that duties not provided for in the charter may be assigned to the departments to which they belong. Then the drafters of the charter, realizing that in a growing and developing city conditions would probably change in some of the departments created, that the duties of the various commissioners might become so burdensome that it would be a matter of physical impossibility for the commissioner of such department to properly and efficiently discharge all of the duties of this department, or that a commissioner might through incompetency, corruption, or a physical disability neglect the duties of his department and thereby retard the efficient administration of the governmental affairs of the city — then, by the last sentence of section 11, art. 2, in plain and unmistakable language, the drafters of the charter said, "and should have power by a vote of four out of five commissioners to transfer duties from one commissioner and one department to another commissioner and another department." This is the language of the supreme law of Oklahoma City; it is the voice of the people. The people, speaking through that provision of their supreme law, have said that four of their duly elected and qualified commissioners, exercising their best judgment and discretion in the honest and faithful administration of the governmental powers of Oklahoma City, are vested with power to transfer duties from one commissioner to another commissioner. They had a right to place that provision in their charter law. They did place it in their supreme law, and the wisdom of the people in adopting this provision, viewing the incompetency and inefficiency of many derelict municipal officers, cannot be doubted.

There is a rule of law which was announced by Mr. Chief Justice Marshall, the greatest American jurist that ever occupied a judicial position in this country, which is controlling in a proper determination of this cause and which was not invoked in the opinion by the majority of this court. A statute which is not uncertain or ambiguous, but plain and clear in its terms, is not subject to construction. In the case of the United States v. Wiltberger, 5 U.S. 73, 5 L.Ed. 42, Mr. Chief Justice Marshall, speaking for the Supreme Court of the United States, said:

"Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of the statute, its language must authorize us to say so."

The rule will be found in 25 R. C. L. par. 213, at page 957:

"Where the language of a statute is plain and unambiguous and its meaning clear and unmistakble, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself."

The Supreme Court of the United States, in the case of Caminetti v. United States, 242 U.S. 485, 61 L.Ed. at pages 452 and 453, speaking through Mr. Justice Day, said:

"It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body which passed it, the sole function of the courts is to enforce it according to its terms. Lake County v. Rollins, 130 U.S. 660, 670, 671, 32 L.Ed. 1060, 1063, 1064, 9 Sup. Ct. Rep. 651; Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 33, 39 L.Ed. 601, 610, 15 Sup. Ct. Rep. 508; United States v. Lexington Mill Elevator Co.,232 U.S. 399, 409, 58 L.Ed. 658, 601, L. R. A. 1915 B, 774, 34 Sup. Ct. Rep. 337; United States v. First Nat. Bank,234 U.S. 245, 258, 58 L.Ed. 1298, 1303, 34 Sup. Ct. Rep. 846.

"Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion. Hamilton v. Rathbone, 175 U.S. 414, 421, 44 L.Ed. 219, 222, 20 Sup. Ct. Rep. 155."

The people of Oklahoma City have provided in their charter that the duties imposed upon one department or one commissioner may be transferred from one commissioner to another commissioner or department, and the language is plain and simple, and under the rule of law that in such a situation there is no room for construction, supported by the decisions of the appellate courts of every state in the Union and the decisions of the Supreme Court of the United States from the time Chief Justice Marshall abhered to the rule up until the present time, it is obvious that it is a dangerous precedent to depart from a rule so well established. The majority opinion of this court in the case at bar in holding that the word "duties," as found in the last sentence of section 11, art. 2, of the city charter, has reference only to such duties as are referred to in the first sentence of said section, or duties not specifically provided for in the charter, invokes the rule of ejusdem generis and quotes for authority the rule as announced in 25 R. C. L. p. 996, to wit:

"General words in a statute must receive a general construction, unless there is something in it to restrain them, but in accordance with what is commonly known as the rule of ejusdem generis, where, in a statute, general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose."

But upon an examination of the rule as found in this authority it is apparent by reading the additional statement of the rule that the same does not support the contention of the plaintiff in this case, and it is also apparent that the effect of the rule is that where a statute enumerates certain things that the statute is to operate upon and then makes use of the phrases "other things," "others," or "any other," such phrases are commonly restricted to the class or kind of things previously described in the statute.

A continuation of this rule is found in 25 R. C. L., quoted in the majority opinion, at page 997, which is as follows:

"A statute enumerating things inferior cannot, by general words, be construed so as to extend to and embrace those which are superior. In accordance with the rule of ejusdem generis such terms as 'other,' 'other things,' 'others,' or 'any other,' when preceded by a specific enumeration, are commonly given a restricted meaning, and limited to articles of the same nature as those previously described. Thus it has been held that the words 'other erection or inclosure,' employed in a statute defining burglary, must be interpreted as including only things of a similar nature to those already described by the specific words found in the statute. So it has been decided that replevin will not lie for crops severed by the person in possession of the land under claim of title, either at common law or under a statute enabling the owner of the land to maintain replevin for timber, lumber, coal or 'other property,' severed therefrom. And in construing a statute which gives to 'every wife, child, parent, guardian, husband or other person.' a right of action, for injury by reason of the intoxication of any person against the seller of the liquors, since the persons enumerated are persons who stand to him in special relation, it is therefore to be assumed that 'any other person' who may sue must also stand to him in some special relation so as to be injured by his intoxication or by the sale, etc., to him."

It is obvious from the statement just quoted that the rule of ejusdem generis has no application to the case at bar, for nowhere in section 11, art. 2, of the city charter is such a phrase as "others." "any other," "other," or "other things" used, and the decisions of this court in Board of County Commissioners v. Grimes, 75 Okla. 219, 182 P. 897. Wolf v. Blackwell Oil Company, 77 Okla. 82, 186 P. 484, do not sustain the contention of the plaintiff in this cause, for the reason that the language used in the statutes under construction was similar to the expressions as found in the rule as announced in R. C. L., supra.

At page 998 of 25 R. C. L., the authority says:

"The rule ejusdem generis does not apply where the specific words signify subjects greatly different from one another. And where the particular words embrace all the persons or objects of the class mentioned, and thereby exhaust the class or genus, there can be nothing ejusdem generis left for the rule to operate on, and a meaning must be given to the general words different from that indicated by the specific words, or there can be ascribed to them no meaning at all."

In the first sentence of section 11, art. 2, of the charter under consideration, complete provision was made for the assigning of duties not specifically named in the charter, and the board of commissioners were empowered in the first sentence of said section to dispose of such duties, and if the writers of the charter did not intend to empower the commissioners to transfer duties already provided for in the charter from one department unto another department, the second sentence found in section 11, art. 2, has no meaning at all. The Supreme Court of the United States, in the case of United States v. Simon J. Mescall, 54 L.Ed. 79, speaking through Mr. Justice Brewer, said:

"Counsel for defendant invokes what is sometimes known as Lord Tenderden's rule, — that, where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described — ejusdem generis. * * * But this is only a rule of construction to aid us in arriving at the real legislative intent. It is not a east-iron rule it does not override all other rules of construction, and it is never applied to defeat the real purpose of the statute, as that purpose may be gathered from the whole instrument. * * * Whilst it is aimed to preserve a meaning for the particular words, it is not intended to render meaningless the general words. Therefore, where the particular words exhaust the class, the general words must be construed as embracing something outside of that class. If the particular words exhaust the genus, there is nothing ejusdem generis left, and in such case we must-give the general words a meaning outside of the class indicated by the particular words, or we must say that they are meaningless, and thereby sacrifice the general to preserve the particular words. In that case the rule would defeat its own purpose. See, also, Gillock v. People, 171 III. 307, 49 N.E. 712, and the cases cited in the opinion; Winters v. Duluth, 82 Minn. 127, 84 N.W. 788; Matthews v. Kimball, 70 Ark. 451, 462, 68 S.W. 651, 69 S.W. 547."

And this court, in the case of Kansas City So. Ry. Co. v. Wallace et al., 38 Okla. 233, 132 P. 912, speaking through Mr. Justice Dunn, said:

"But in applying this principle of construction, and in determining what things are ejusdem generis, regard must be had to the general subject to which the act relates. Things which plainly belong to the same class when one subject is being considered might belong to an entirely different class when considered with reference to another subject. The rule would be absurd if under the head of 'other' nothing can be included in the construction of the act which is not exactly the same in every particular as the thing specified. * * * Moreover, it has been held upon sound reason that when the particular word or words exhaust a whole genus, the general term will not be regarded as surplusage, but will be construed to refer to a larger class. This must be so, if regard be had to the rule, which is more imperative than the rule ejusdem generis, that a statute is to be considered as a whole, so that, if possible, effect will be given to every part of it."

The courts have uniformly held that the rule ejusdem generis is by no means a rule of universal application and the important use of the rule is to carry out and not defeat the legislative intention, and it never applies when the specific words signify subjects greatly different from one another. Jones v. The State, 104 Ark. 261, 33 Ann. Cas. 302 and note at p. 305.

Applying this to the case at bar, the first sentence found in section 11, art 2, of the charter made provision for duties to be created by the commissioners, and had it been the intent of the drafters of the charter to confine the transfer of duties, as prescribed in the second sentence of section 11, supra, to duties created by the commissioners, it would have been very easy to have qualified the word "duties" by the word "said" or "such", but, on the contrary, it is clear that it was the intention of the framers of the organic law of the city to vest the board of commissioners with discretionary power in meeting emergencies and changing conditions. It has been suggested that if section 11, art. 2, of the charter is construed so as to permit the board of commissioners by a vote of four out of five to transfer duties from one department to another department or from one commissioner to another commissioner, the board of commissioners may entirely take away the duties of a commissioner and leave such commissioner with an office drawing a salary without any duties to perform. Courts will not indulge in the presumption that a majority of the board of commissioners will act corruptly and dishonestly in the discharge of their duties, or that they will abuse the power and discretion vested in them. All tribunals, boards, legislative bodies, and public officers of every description are vested more or less with discretionary powers, but the presumption is that this power will be exercised in the interest of the public.

This case is not before the court invoking the equitable jurisdiction of the court to prevent some inferior tribunal from abusing its discretion. No doubt the petitioner could invoke the equitable jurisdiction of the court to prevent an inferior tribunal from doing him some great injury or wrong for which he is entitled to redress.

It has been suggested that the state has a sovereign interest in the police department of Oklahoma City. The state has a sovereign interest in every citizen in the state. The state has a sovereign interest in every school teacher that teaches the youth of the state, but the state has no interest in what particular superintendents are selected to conduct the different schools of the state; and while the state has an interest in the police department of the various cities of the state to the extent that police officers discharge their duties both to the state and city, the state has no interest whatever in what municipal officers control the police departments or what particular officers control the various city jails of the cities of the state. It is conceded that in purely municipal affairs the charter is the supreme law of the city and must control. Lackey et al. v. State ex rel. Grant, 29 Okla. 255,116 P. 913; Mitchell v. Carter. 31 Okla. 592, 122 P. 691: Dunham, City Clerk, v. Ardery, 43 Okla. 619, 143 P. 331. Manifestly the distribution of the respective duties of purely municipal affairs is entirely a municipal affair, and the courts hold that the tenure of office and the method of removing and electing city officials are purely municipal affairs. Conn v. City Council of the City of Richmond, 17 Cal.App. 705,121 P. 714; Graham v. Roberts, 200 Mass. 152,85 N.E. 1009; Hilsinger v. Gillman, 56 Wn. 228, 105 P. 471. In this state the question that in purely municipal affairs in cities governed by a charter form of government the Legislature is without power to in any way interfere in governmental matters of purely municipal interest appears to have been settled. In the case of Lackey et al. v. State, supra, this court said, speaking through Mr. Justice Hayes:

"In that event, all that a city could do under the provisions of section 3-a, supra, in the formation of a charter for its own government, would be to adopt in haec verba the general statute. Such a result would render section 3-a nugatory and the exercise of any power it is supposed to grant useless, and result in its effectual repeal by an act of the legislature, without such power having been specifically granted to the Legislature. * * * To the extent that the charter form of government adopted by Oklahoma City provides that the powers granted to the corporation shall be administered by a board of commissioners elected from the city at large, it is in conflict with the statute; but whether the powers of such city are exercised by a mayor and a city council, or by a board of commissioners, is purely a matter of municipal and local concern."

The Supreme Court of Michigan, in the case of People ex rel. LeRoy v. Hurlbut et al., 24 Mich. 44, speaking through Mr. Justice Cooley, said:

"The State may mould local institutions according to its views of policy or expediency; but local government is matter of absolute right; and the state cannot take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty where the state not only shaped its government, but at discretion sent in its own agents to administer it; or to call that system one of constitutional freedom under which it should be equally admissible to allow the people full control in their local affairs, or no control at all."

Many cases have been cited to the effect that where an office is created by a constitutional provision, the Legislature is without power to transfer the duties to some other officer. There is no reason to doubt the soundness of this rule, and the same has no application in the case at bar. It is admitted by the parties to this controversy that if the Constitution authorized the Legislature to transfer duties from one officer to another officer, then the act of the Legislature making a transfer of duties under constitutional authority would be valid.

The case of Francis, Mayor of St. Louis, v. Blair et al., Police. Commissioner, 1 S.W. 297, is relied upon as supporting the construction placed upon section 11, art. 2, by the plaintiff in this action. In this case the board of police commissioners, appointed by the Governor of the state of Missouri, undertook by resolution to deprive the mayor of St. Louis, an elective municipal officer of said city, of the control of the police. The court held, that the duties of the mayor of St. Louis being prescribed by an act of the Legislature of the state, the board of police commissioners appointed by the Governor of the state were without authority to deprive the mayor of any of his duties as they were prescribed by the Legislature of the state. The case is not in point in the case at bar. No one would contend that a board of aldermen in an incorporated town, or city, of Oklahoma, whose authority is defined by the general statutes of the state, and where the various officers of such city or town derive their authority only by virtue of the general laws of the state, would have authority to change the statutory duties of any city or municipal officer.

In the case at bar, upon a careful consideration of the issues involved and an examination of the authorities, I conclude that Oklahoma City adopted its charter under the authority of the Constitution, and under the Constitution the people of Oklahoma City have the absolute right to local government, and that the matter as to who controls the police and city jail of Oklahoma City is purely a municipal matter, and that a court of equity is without jurisdiction to issue the extraordinary writ of injunction and interfere in a purely municipal governmental affair where the action sought to be enjoined is clearly authorized under the plain provisions of the city charter; that section 11, art. 2, of the charter was incorporated in the supreme law of the city in order to give a proper degree of elasticity to the charter, so that in times of emergency the public interest would not be allowed to suffer by reason of the inefficiency or dereliction of one commissioner. No doubt, the drafters of the charter had in mind that four of the five commissioners could be depended upon to properly represent public opinion and act for the best interest of the city in case of emergency.

It was suggested in the oral argument of the cause that in the fall of 1918, during the epidemic of influenza, when the death rate was between ten and twenty per day and thousands were seriously ill, the commissioner in charge of the health department failed to discharge his duties satisfactorily to the public and that the commissioners by a vote of four out of the five, the present plaintiff, then mayor, concurring in the vote, acting under the authority of section 11, art. 2, transferred the duties of the commissioner of public health to another department. This only demonstrates the wisdom of the drafters of the charter in providing for an elastic form of government to meet the changing conditions. This shows conclusively that the only question involved in this cause is the intent to be derived from the section of the charter under consideration. I cannot believe that it was the intention of the framers of the charter to safeguard the transferring of incidental duties not provided for in the charter by so much caution as to require a vote of four out of the five commissioners to transfer such incidental duties, but the logical and reasonable conclusion is that they intended to vest the commissioners with the power to meet emergencies.

It appears to the writer of this opinion, with great deference to majority opinion herein, that the construction that they have placed on the charter falls within the proverb of Judge Lamm, of the Supreme Court of Missouri, when he said:

"Strained and unnatural statute construction smacks of wringing the words so hard the meaning extracted is bitter, even as the wringing of the nose brings blood."

I am authorized to state that Mr. Justice MILLER concurs in this opinion.