Battles v. Childers

WELCH,, J. Plaintiff, legally appointed, qualified, and acting member of the Conservation Commission of the State of Oklahoma, seeks a writ of mandamus requiring the State Auditor and State Treasurer to allow and pay his claim as salary as such commissioner for the month of July, 1936. There is no controversy as to any of the facts. It is conceded that the plaintiff is such member of said commission. That such commission was created by the 15th Legislature by House Bill No. 84, being article 3 of chapter 70, S. L. 1935'; that by said act the salary was fixed at $4,000 per year, payable monthly; the term of office was fixed for a term of years, and the plaintiff is now serving one of those terms. The same Legislature passed a separate appropriation bill, appropriating funds specifically for salaries, traveling and other expenses of the members and employees of the Conservation Commission up to June 30, 1935, and from July 1, 1935, to June 30, 1936, but did not make any such appropriation for the fiscal year 1936-37, and for that reason the state officers declined to allow and pay plaintiff’s claim pending determination of this action. As we view the matter, this case is controlled by the former decisions of this court in Edwards v. Carter, 167 Okla. 287, 29 P. (2d) 610, and State ex rel. Telle v. Carter, 170 Okla. 50, 39 P. (2d) 134. It was there determined, in substance, that when the Legislature, by valid legislation, creates a state office and fixes the tenure of office and salary, then, under section 17 of the Schedule of the Constitution, it is the law that such officer shall receive the fixed compensation, and it was held that by such legislative enactment, together with the Constitution of the state, there resulted an appropriation by law of a sufficient portion of the state revenue to pay the state officer for his services at the rate fixed by law. Those decisions being controlling, and upon the authority thereof, the prayer of the petitioner is granted, and the writ is ordered to issue. RILEY, BAYLESS, BUSBY, and CORN, .JJ., concur. McNEILL, C. J., OSBORN, W. C. J., and PHELPS and GIBSON, JJ„ dissent.