Aubrey v. Huser

RILEY, Acting C. J. This is an original action brought by the superior judge of Seminole county to compel the court clerk of Seminole county to pay to plaintiff the compensation provided by law. Plaintiff assumed the duties of superior judge of Seminole county, Okla., on January 13, 1947, for a term of four years. The defendant as the court clerk is the custodian of the court funds and is authorized to approve claims and issue vouchers payable from said funds. Senate Bill 228, chap, 5A, tit. 20, S. L. 1947, p. 229 (20 O. S. A. §§145.1, 145.2) imposes the additional duty upon superior judges of the state of being parole advisers for their respective counties, and for the performance of the additional duty an additional compensation is made payable to them, as provided in House Bill 127, enacted by the same Legislature. By the provisions of House Bill 127, chap. 5, Tit. 20, S. L. 1947 (20 O. S. A. §141.1), the annual salaries of judges of superior courts of this state are fixed in a sum equal to the salaries of district judges in the districts where such superior courts are located. Four thousand dollars ($4,000) of the annual salary is payable from the general fund of the respective counties, and all in excess thereof is payable out of the court fund of such county, provided the balance in such court fund is in excess of five thousand dollars ($5,000); otherwise, the remainder of such salaries is payable from the general fund. It is agreed that plaintiff has performed the additional duties imposed upon him; that the court fund of Seminole county is sufficient with which to pay the compensation provided, and that plaintiff’s claim for the month of September 1947, had been presented and disallowed. Defendant contends that S. B. 228, supra, is a special and local law, regulating the affairs of counties in violation of the Constitution of Oklahoma, sec. 46, art. 5. The determining factor is whether the provisions of the act operate uniformly upon the subject matter naturally falling within the scope of the legislation, or whether, to the contrary, there is an arbitrary discrimination or exclusion. Measured by this test, it appears that the legislation extends to all superior courts of this state presently existing, or such as may hereafter be established. In Roberts v. Ledgerwood et al., 134 Okla. 152, 272 P. 448, in determining whether a legislative act was special and local, or general in its nature, we said: “In order for a law to be general in its nature and to have uniform operation, it is not necessary that it shall operate upon every person and every locality in the state. A law may.be general and have a local application or apply to a designated class if it operates equally upon all the subjects within the class for which it was adopted.” Herein we find that the classification is not capricious or arbitrary. There is [62] neither an inclusion nor omission from the subject matter dealt with in the legislation. Consequently, it may not be said that any discrimination is made. Therefore, under the rule in Burks v. Walker, 25 Okla. 353, 104 P. 544, reiterated in Oklahoma City v. Excise Board of Oklahoma County et al., 193 Okla. 189, 141 P. 2d 805, we conclude that the act, supra, constitutes general legislation and is neither special nor local as prohibited by section 46, art. 5, Constitution of Oklahoma. It is urged that even if the provision of S. B. 228 (20 O. S. A. §§ 145.1, 145.2) are constitutional and valid, plaintiff, as a judge of the superior court of Seminole county, or any other such judge elected or appointed to office prior to April 8, 1947, the effective date of the act, would not be entitled to the increased compensation because of the prohibition of section 10, art. 23, Constitution of Oklahoma. The prohibition reads: “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; In Phelps et al. v. Childers et al., 184 Okla. 421, 89 P. 2d 782, and Bond et al. v. Phelps, State Budget Director, et al., 200 Okla. 70, 191 P. 2d 938, the latter being a companion case, the application of the prohibition contained in section 10, art. 23, of the Constitution, supra, restricting a change in the salary or emoluments of any public official after his election or appointment, or during his term of office, was at length considered. In each of these cases it was held that the constitutional provision did not apply “where the new duties or services so provided in the act are foreign to or beyond the scope or range of and not germane to the duties of the office.” Hence, our inquiry in the case at bar is limited to the question as to whether the additional duties imposed by the provisions of S. B. 228 (20 O. S. A. §145.1) are, or are not, germane to the office of a superior judge. That additional duties were imposed by the act, supra, there can be no doubt. By the terms employed within the first section of the act, the Legislature expressed its view that the duties so imposed were' “in addition.” Prior to the enactment of S. B. 228, judges of the superior courts, in common with all other judges of courts of record of the state, had authority to suspend sentences of persons convicted of crimes, with the exceptions stated, in their respective courts. Tit. 22, O. S. A. §991. And all such judges were empowered to hear reports as to the conduct of such persons released by them and to revoke the order of suspension and enforce the original sentences imposed. Sec. 992, Id. But under the provisions of S. B. 228, supra, the additional duty was devolved upon judges of superior courts of the state to act as parole advisers of all persons in their respective counties who had been paroled from penal institutions of the state, and to keep a record of such interviews with such persons and to make a report every six months to the Pardón and Parole Officer of the state. In James, Auditor, v. Cammack, 139 Ky. 223, 129 S. W. 582, relied upon and quoted at length in Bond et al. v. Phelps, State Budget Director, supra, the additional duty imposed upon judges made them subject to assignment outside their circuits and within any part of the state. Extra compensation for the additional services was sustained, it being noted that the additional duties imposed were not a part of those pertaining to the regular jurisdiction of the court, and that the duty of being a special judge might be imposed upon any member of the bar. In the instant case, the duty of being a parole adviser of any person paroled from a penal institution of the state is not within the duty of the judge of a [63] court of record, but that duty devolves primarily upon the Pardon and Parole Board, an independent agency (57 O. S. A. §332.1 et seq.), and the parole adviser to each person paroled from a penal institution of the state, as contemplated by the provisions of section 332.8, Id., and the Pardon and Parole Officer of the state (section 332.11, Id.). As to persons within their respective counties where superior courts are located, the superior judge has no authority to revoke the parole of a person released from a penal institution of the state. That duty is executive and not judicial. 57 O. S. A. §332.12 et seq. Moreover, the additional duty imposed upon superior judges of the state to keep a record of interviews with all persons in their respective counties who have been paroled from penal institutions of the state, and to report every six months to the Pardon and Parole Officer of the state, is the provision for a service foreign to and beyond the scope and range of the duties theretofore devolved upon any judge of any court of record within this state. Under the provisions of R. L. 1910, §4637 (57 O. S. A. §343), since repealed, the Pardon and Parole Board once had power to require certain information from a judge before whom a person was convicted, but the furnishing of such record and reports, like that required under the provisions of S. B. 228, supra, is in nowise judicial, but purely administrative in character. The duty additionally imposed of making reports to the Pardon and Parole Officer is comparable to the duties devolved upon Justices of the Supreme Court, as considered in Phelps et al. v. Childers, State Auditor, supra, whereby certain Justices of the Supreme Court were authorized to make a compilation of procedural statutes, with annotations, for which they were paid an additional compensation during their term of office. That duty was held to be non judicial and therefore not germane to the office of a judge. These additional duties are also comparable to those devolved upon members of the Corporation Commission, and considered in the companion case, by which members of the Corporation Commission were authorized to make an annotated compilation of all oil and gas laws of Oklahoma, together with general orders, rules and regulations adopted by the Corporation Commission pursuant thereto, for which the members of the Corporation Commission were adjudged to be entitled to an additional compensation during their term of office. We can find no substantial difference in the character between the additional duties imposed by S. B. 228, supra, and those considered in the cases to which reference has been made. In each of those cases the additional duties were held to be nongermane. As measured by the rule prevailing, plaintiff is entitled to the writ as sought. Let the writ issue. BRANSON, Acting V. C. J., concurring by reason of decision in Bond et al. v. Phelps, State Budget Director, supra; and BASKIN, BASSMAN, and STAMPER, Special JJ., concur. BAB-COCK, JOHNSON, SWEET, and POWELL, Special JJ., dissent.