Board of County Commissioners v. Litton

1957 OK 139, 315 P.2d 239, 64 A.L.R. 2d 1365, 1957 Okla. LEXIS 493

Opinions

BLACKBIRD, Justice.

This appeal involves the right of defendant in error, a former County Commissioner of Oklahoma County, to the salary of said office for that part of his unexpired term after he was decreed to have forfeited the office by reason of violating the statute originally enacted as Chap. 173, art. II, S.L. 1915, which said statute, as amended, is now designated as Tit. 69 O.S.1951 §§ 322-327, inclusive. The decree of forfeiture was contained in the judgments of conviction entered by the District Court of said County in its criminal cause No. 21151, entitled “State of Oklahoma v. Edd L. Hisel, Charles A. Litton and Grover Pendleton.” Litton and Hisel lodged separate appeals in the Criminal Court of Appeals from the individual judgments entered against them in said action. These appeals are reported as Litton v. State, 97 Okl.Cr. 367, 264 P.2d 386, and Hisel v. State, 97 Okl.Cr. 356, 264 P.2d 375.

The particular section of said statute that the above-named County Commissioners were alleged by the Information filed in said criminal action, to have violated, is Tit. 69 O.S.1951 § 323. The penal provisions of said Act are found in sec. 327 of the same title, as follows:

“Any road, county, or other official charged with duties herein who shall violate any of the terms or provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than One Hundred ($100.00) Dollars for each offense, or imprisoned in the County Jail not less than Thirty (30) Days, or suffer both such fine and imprisonment. Upon presentation in court of complaint in legal form, alleging violation of any provision of this Act, any road official charged with the duties herein shall be, at the option of the court, immediately suspended from office pending final judgment, and upon being found guilty shall forfeit his office in addition to any punishment imposed.” (Emphasis ours.)

In Hisel’s and Litton’s appeals from the above-mentioned judgments of conviction and forfeiture, the Criminal Court of Appeals, in the afore-cited opinions promulgated November 25, 1953, found the evidence insufficient to sustain said judgments, and reversed them.

Thereafter, in December, 1954, Litton instituted the present action, as plaintiff, against Oklahoma County and its then Board of County Commissioners, as defendants, to recover the sum of $3,331.90 as the salary allegedly due him as County Commissioner from June 28, 1952, the date of his conviction in the District Court, to January 5, 1953, the date his term of office expired, with interest on said sum at the rate of six percent. Said plaintiff’s theory was that, upon the aforesaid reversal of his conviction by the appellate court, he was entitled to all of the emoluments of said office, as if he had never been convicted.

The action was tried only against the defendant Board of County Commissioners; and, in our further reference to the parties to this appeal their trial court designations of “plaintiff” and “defendant” will be used.

At the trial, although it was stipulated that on the date of plaintiff’s criminal conviction and forfeiture of his position of County Commissioner, the State’s then Governor appointed one Earl Laverne Overholser to fill the position, and that Overholser immediately qualified for said office and performed all the duties, and was paid the regular salary thereof for the entire period involved in this action, the trial court entered judgment for plaintiff herein. Thereafter, defendant lodged the present appeal.

To deal with defendant’s argument for reversal, it is first necessary to determine the meaning of sec. 327, supra, under which the judge, who tried him without a jury in Cause No. 21151, supra, found by his judgment, plaintiff had violated sec. 323, supra; and, in said judgment decreed forfeiture of his office. If defendant interprets the law correctly and said judge was thereby authorized to decree such forfeiture, or, if as thus interpreted, plaintiff’s right to said office, upon said conviction, became forfeited by operation of the law itself (without any such decree, or declaration by the court) as defendant’s argument might infer, the correctness of the judgment herein appealed from, allowing plaintiff recovery of the salary of said office, is doubtful.

We think the key to the correct interpretation of the section in question is the way that the term “final judgment” is used therein. It will be noted that the statute authorizes suspending the official charged, or complained of, “pending final judgment * * *”. If “final judgment” as here used means only one that has become conclusive, then, in the event an appeal has been lodged, the quoted phrase could only mean “pending” the appellate court’s decision, or other final disposition of the appeal. As the term “forfeit” connotes an entire and permanent loss, rather than a temporary withholding, like the word “suspend” (see State v. Heinmiller, 38 Ohio St. 101, 108, and other cases cited in 67 C.J.S. Officers § 58, page 233, under Note 40, and the definition of “forfeit” in Ballentine’s Law Dictionary and Webster’s International Dictionary) the statute would have to be read as saying that the official could be suspended from the office for a period longer than it belonged to him, or, in other words, suspended from the office for a period not terminating until some time after (depending on how long it took the appellate court to dispose of the appeal) he had absolutely lost the office by forfeiture. This would render the statute ambiguous, its meaning absurd, and its effect anomalous. It must be presumed that the Legislature intended no such meaning, interpretation, or result. While we recognize that the term “final judgment” may be used in different senses, and mean different things for different purposes, such, for instance, as when a judgment is “final” for the purpose of appeal (in which instance it may be said to become so “when the tribunal in which it is rendered gets done with it”. In re Casebier, 129 Kan. 853, 284 P. 611, 614, cited in the Annotations at 106 A.L.R. 644, 645; and, to the same effect, see the quotation from State v. Savage, 86 W.Va. 655, 104 S.E. 153, in State ex rel. Blake v. Levi, 109 W.Va. 277, 153 S.E. 587, 588, also cited in said Annotations at page 646) the general rule has long been that “a judgment is not final in the sense that it is conclusive upon the parties until the losing party has failed, within the time allowed by law to perfect his appeal, or having properly prosecuted his appeal, until the highest court whose decision is invoked by either party upholds the decision of the trial court.” Methvin v. Methvin, 191 Okl. 177, 127 P.2d 186, 188. In view of the fact that the meaning of the term “final judgment” when used in this sense had such a well recognized meaning by the time sec. 327, supra, in its original form, was enacted in 1915, and the further fact that the general statute dealing with “Officers” (Tit. 51 O.S.1951 §§ 1-105, inclusive; Chap. LVIII, Statutes of Oklahoma, Rev. & Ann. 1903) that had been on the statute books more than twenty-five years (effective beginning Dec. 25, 1890), specifically used it in that sense, it is unreasonable to believe that the Legislature intended, by the special statute, to prescribe expulsion of an official, upon being found guilty of a misdemeanor, more summarily (or before appellate review of his conviction) than is provided by the general statute (Tit. 51, § 8, supra, par. “Fifth”) for a “conviction of any infamous crime * * It is reasonable to believe that, in enacting the 1915 Statute, the Legislature intended not only that said Act should be unambiguous, and its provisions consistent with each other, but also that it should be consistent with the general statute, and should not render an office vacant sooner because of its holder’s conviction of a misdemeanor than would be the case if he had been found guilty, or convicted, of a greater offense. We therefore hold that the term “final judgment” connotes no more conclusiveness as used in sec. 327, supra, than the same term possesses in sec. 8, supra; and, on the basis of this determination, we further hold that said later statute’s provision for forfeiture of an official’s office, “upon being found guilty”, of a violation of said Act, was not intended to take effect until his conviction becomes final and conclusive, which, where the conviction is appealed, does not occur, as far as concerns the forfeiture, until final determination of the appeal. In this view, no specific statute for that purpose was necessary to establish, or restore, plaintiff’s title to the office after reversal of the judgment in Cause No. 21151, for he had never lost said title. And, as far as the record discloses, the option given the court by said statute to suspend him from said office “upon presentation in court of complaint in legal form” was never exercised previous to the trial and judgment in said case. In view of the aspects of this case, to which we have alluded, and other facts and features thereof unnecessary to detail, we think that, upon thorough analysis, it is different and distinguishable from every case cited by the defendant and others that have come to our attention through Annotations in 106 A.L.R., supra, and independent research.

The view we take of this case renders it unnecessary to discuss in detail other arguments set forth in defendant’s brief under its Propositions No. 2-5, both inclusive. Briefly and generally stated, these are that since plaintiff, after judgment in Cause No. 21151, supra, performed none of the duties of the office as County Commissioner, but such duties were performed by another appointed to fill out his unexpired term, which said appointee was at least a “de facto” County Commissioner, the trial court’s judgment in plaintiff’s favor cannot be sustained even on the theory that plaintiff was, during the same period, the “de jure” County Commissioner, because :

(1) Establishing his right to the office by direct legal proceedings for that purpose was a condition precedent to the maintenance of such an action;

(2) The county’s payment of the salary for said office is a complete defense to the present action for duplicate payment.

Defendant’s argument with reference to (1) above, would have merit if, by reason of the judgment in Cause No. 21151, plain-iff had lost his title to his office as County Commissioner. However, as we have demonstrated, he did not, and the forfeiture decreed in said judgment never became effective, or operative, because said judgment was reversed. In terms of ultimate result, that part of said judgment became a nullity. This being true, no statute, nor legal proceedings under such a statute, was necessary to restore plaintiff’s right and title to the office after the judgment’s reversal. If the ordering of the forfeiture was a part of the judgment of conviction, the judgment’s reversal worked a vacation of the forfeiture to the same extent that it vacated the conviction. In this connection, see Ward v. Marshall, 96 Cal. 155, 30 P. 1113, 31 Am.St.Rep. 198. As plaintiff had never been suspended by separate order or judgment, there was then no effective defect in his title to the office.

Nor do we think that the county’s previous payment of the salary of said office to Mr. Overholser renders the trial court’s judgment erroneous. We are fully aware of the fact that under the opinion of this court in the early case of Stearns v. Sims, 1909, 24 Okl. 623, 104 P. 44, 24 L.R.A.,N.S., 475, the county’s payment to Mr. Overholser would be a complete defense to an action for the payment of a like amount to the plaintiff. We are further aware that the Stearns case has more recently been reaffirmed and followed by this court. See, for instance, City of Tulsa v. Coker, 181 Okl. 291, 73 P.2d 443, and City of Tulsa v. Johnson, 196 Okl. 213, 163 P.2d 993, 163 A.L.R. 754. However, upon a thorough reconsideration of the matter herein, including a comparison of the opinions of other courts (see the Annotations at 55 A.L.R. 997, 59 A.L.R. 117, and 163 A.L.R. 760), we have concluded that the rule followed in Ness v. City of Fargo, 64 N.D. 231, 251 N.W. 843, where the defense of previous payment to a de facto officer was rejected, is the sound, just and logical one. In that case the court answered to our satisfaction every argument that has been advanced in favor of defendant’s position. Without unnecessarily lengthening this opinion to discuss that case in detail, and without necessarily committing ourselves to accepting everything said therein, we adopt generally the views therein expressed, as indicative of the correct principles applicable to a case like the present one. To the extent that those views conflict with what we have said in the cases above cited and any others, said cases are hereby overruled.

In view of the foregoing determination of one of defendant’s major defenses to the action, and grounds for reversal of the trial court’s judgment therein, there remains only one of its arguments which merits further consideration. This is advanced under its Proposition No. 6, viz., “Plaintiff’s cause of action is barred by statute.” The only statute referred to is Tit. 62 O.S. 1951 § 310.4, which is sec. 4 of House Bill No. 370, enacted by the Twenty-First Leg islature, and commonly referred to as the “Purchase Order” law (S.L.1947, pages 391 and 392). Defendant argues that since plaintiff’s claim, upheld in the trial court’s judgment, was for his salary as County Commissioner for the period from June 28, 19S2, to January 3, 1953, which constituted parts of the fiscal years of 1951-52 and 1952-53, and, plaintiff, before September 30th of these respective years, filed no claims for the portions of said sum which, under his theory, rightfully accrued to him during those particular fiscal years, he is now barred from claiming either portion thereof. There are several points of distinction between the claim involved here and the voluntary indebtednesses to which said Statute has been applied. See the discussion in Board of County Com’rs of Okmulgee County v. Ming, 195 Okl. 234, 156 P.2d 820, and 14 Am.Jur., “Counties”, sec. 67. It will be remembered that the opinion of the Criminal Court of Appeals, in Litton v. State, supra, was not promulgated until November 25, 1953. (According to the undisputed allegation in plaintiff’s petition, he filed a verified claim for his salary on December 30th, thereafter, and said claim was rejected by the defendant Board on January 4, 1954). Before said reversal, said claim was under the legal impediment of the district court’s judgment of forfeiture in Cause No. 21151, supra. While said claim was under such impediment, the defendant Board, with presumptive regard for its official duty, would most probably have rejected it, if it had been presented. Under the circumstances, we do not think plaintiff’s claim was barred by the so-called “Purchase Order” law, supra.

In accord with the foregoing, the judgment of the trial court is affirmed.

CORN, V. C. J., and JOHNSON, WILLIAMS and CARLILE, JJ., concur. DAVISON, J., concurs in result. WELCH, C. J., concurs in part and dissents in part. HALLEY and JACKSON, JJ., dissent.