Kirk v. Board of County Commissioners

HODGES, Justice. This is an appeal by the appellants, the Board of County Commissioners of Muskogee County, Oklahoma, [Commissioners], from the judgment of the district court. The court found that certain county officers had been assigned additional duties by the Oklahoma Legislature, which were not germane to the duties of their respective offices, for which they were not compensated; and that because officers serving in the same capacity and performing the same duties in other counties received statutory salary increases, the affected officers had been denied equal protection under the law. I The Oklahoma Legislature pursuant to 19 O.S.Supp.1978 § 180.62 established the basic salaries of elected county officers. Subsection A of the statute, which became effective January 8, 1979, provided for salaries of county officers whose terms expire on the first Monday in January or July of 1979, or on the first Monday in January or July of 1981. These are all county officers who were in office when the statute was amended. Subsection B of the statute provided for salaries of county officers whose terms commenced on or after the first Monday in January, 1979, including all county officers whose terms began after the statute was amended. The salaries provided by Subsection B are substantially greater than those provided by Subsection A. The rationale for the salary differential is based on the Okla.Const. art. 23, § 10, which provides in pertinent part: “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; . .” The appellees fall into the category governed by Subsection A of the statute. As a result, it is argued by appellants that appel-lees are not entitled to the statutory raise because of the constitutional prohibition against changing salaries of public officials during their terms in office. It is contended by the Commissioners that the trial court erred in finding that all county officers were entitled to salary increases. It is asserted that the trial court decision hinges on the finding that certain non-germane duties had been imposed on county officers by the legislature without compensation to the officers, when in fact the office holders were already performing the additional duties. In Phelps v. Childers, 184 Okl. 421, 89 P.2d 782 (1939), it was determined that the test is whether new duties are germane to the duties of the office. If they are, the salary increase violates the constitutional prohibition; if not, the new duties are non-germane and the salary in [1336] crease is permissible. It is argued by the county officers that they have shown that each office has had additional duties bestowed upon it in the form of non-germane duties and, therefore, they are entitled to the salary increase commensurate with that of the county officials receiving a raise in January, 1979. Phelps involved an increase in the salaries of certain Oklahoma Supreme Court Justices during their respective term of office. To qualify for the increases the Justices were to prepare a compilation of the laws on “civil, probate and appellate procedure.” Later, in Breeden v. Nigh, 441 P.2d 981 (Okl.1968), it was also determined that the assignment of non-germane duties did not violate the Oklahoma constitutional prohibition. We are well aware of the concept behind the non-germane versus germane duties. However, we feel that it is an attempt to avoid coming to grips with the basic problem presented by art. 23, § 10. While we do not believe that the constitutional provision is, on its face, a denial of equal protection of the laws as mandated by the Fourteenth Amendment, the application of the provision in this instance is repugnant to the United States Constitution. The county officers asserted at the trial court level that the statute, which is predicated on compliance with art. 23 § 10, was invidiously discriminatory. The district court found that it was. We agree. In this case we are dealing with one class, elected county officials, which comprise a group of individuals so interrelated that to differentiate that some shall receive salary increases in 1979, and the balance in 1981, makes a distinction within that class. This distinction also is applied to those employees working for the elected county officials not receiving raises until 1981. These employees are losing benefits which they would be entitled to if that official were receiving a salary commensurate with those officials receiving a raise in 1979. Evidently, earlier decisions of this Court were based on the philosophy expressed by Mr. Justice Holmes in Bain Peanut Co. v. Penton, 282 U.S. 449, 501, 51 S.Ct. 228, 229, 75 L.Ed. 482 (1930), in which he said, “We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” We believe the time has come for the machinations of government to work honestly without subterfuge. The equal protection clause of the United States Constitution provides that no state shall make or enforce any law which denies to any person within its jurisdiction equal protection of the laws.1 In Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), the United States Supreme Court stated that the guarantee of equal protection of the laws is a pledge of the protection of equal laws. In Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), it was acknowledged that the states in determining the reach and the scope of particular legislation need not provide abstract symmetry; and that they may mark and set aside the classes and types of problems according to apparent needs, and as dictated or suggested by experience. It was noted that the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. However, the Court reaffirmed the view that the equal protection clause does not prevent recognition of degrees of evil. Exact equality is not a prerequisite of equal protection of the laws within the meaning of the Fourteenth Amendment.2 The only forbidden classification involves invidious discrimination.3 Invidious discrimination is defined as a classification which is arbitrary, irrational, and not rea [1337] sonably related to a legitimate purpose.4 A law is invidiously discriminatory when it lays an unequal hand on those in .the same class and same quality and not on another. In order to establish a violation of the equal protection clause, there must be proof that a discriminatory intent or purpose was the motivating factor in the official action. De jure discrimination in which a law or official policy expressly treats a class of persons in a less favorable manner is by its very nature intentional.5 Discrimination, in general, is a failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored. Equal protection does not require identity of treatment. It only requires that: the classification rest on real and not feigned differences; the distinction have some relevance to the purpose for which the classification is made; and the different treatments are not so disparate relative to the difference in classification as to be completely arbitrary.6 We find that there is no rational basis for the statutory classification, and that it is an unequal law. Therefore, the Board of County Commissioners of the counties of the State of Oklahoma shall pay all Class A and B officers the higher salaries established under the statutory provision. AFFIRMED. BARNES, SIMMS, DOOLIN and HAR-GRAVE, JJ., concur. LAVENDER, C. J., IRWIN, V. C. J., and WILLIAMS and OPALA, JJ., dissent. Footnotes [1] Fourteenth Amendment, United States Constitution. [2] Norvell v. Illinois, 373 U.S. 420, 423, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963). [3] Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). [4] McLaughlin v. Florida, 379 U.S. 184, 191, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). [5] Keys v. School District No. 1, 413 U.S. 189, 205, 93 S.Ct. 2686, 36 L.Ed.2d 548 (1973). [6] Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S.Ct. 505, 98 L.Ed. 660 (1954).