This action comes to this court by duly certified transcript from the district court of Oklahoma county, wherein Grant B. Grumbine was plaintiff and A. S. J. Shaw, as State Auditor, was defendant, and the parties for convenience in this appeal will be referred to as the plaintiff and defendant.
The questions for determination in this case are: Can the Legislature, during a session, by joint resolution or emergency law, authorize the employment and employ employees to serve at such session in any capacity, under section 49, article 5, of the Constitution, which declares that the Legislature shall not increase the number or emolument of its employees or the employees of either House, except by a general law, which shall not take effect during the term at which such increase is made, and can the Legislature employ employees, by joint resolution or emergency law enacted for that purpose, to assist the Senate sitting as a Court of Impeachment, and during the session at which the Senate sits as such court?
These propositions are presented to this court by the judgment roll in this case, consisting of the petition, answer, reply, motion for judgment on the pleadings, and judgment and decree of the court.
The plaintiff for his cause of action against the defendant alleged and stated, in substance: That the defendant is now, and since the 10th day of January, 1927, has been, the duly elected, qualified, and acting Auditor of the state of Oklahoma, and that under and by virtue of the official position the defendant holds and occupies it is his duty to prepare, audit, and draw vouchers or warrants in payment of salaries and emoluments to all employees employed by the House of Representatives and the State Senate, and that by virtue of the duties of his office he is required to prepare, draw, and audit only such warrants and vouchers for such employees as are legally and lawfully employed and for such amounts, as salaries and emoluments to such employees, as are by law allowed or authorized.
Plaintiff further alleges that on the 8th day of January, 1929, the Legislature of the state of Oklahoma duly assembled in regular session, and such Legislature is now in session, and that the members of the House of Representatives and the members of the State Senate have wrongfully and unlawfully and in violation of section 49, article 5, of the Constitution of the state of Oklahoma, attempted to increase the number of employees of each House and have attempted to increase the emoluments of the employees of each House, and that the members of the House of Representatives and the members of the State Senate have caused to be placed upon the pay roll various and sundry persons, agreeing to prepare and certify vouchers for such persons in amounts exceeding $6 per day and as high as $20 per day. That section 49 of article 5 of the Constitution reads:
"The Legislature shall not increase the number or emoluments of its employees, or the employees of either House, except by general law, which shall not take effect during the term at which such increase was made."
The plaintiff further alleges that the Legislature in 1915 passed an act which became effective on June 22, 1915, and which act was a general law and is now the sole and only law or authority for the number of employees, officers, positions, clerical and stenographic, that may be employed by either House of the Legislature, said act appearing as section 109, C. O. S. 1921. The plaintiff then sets out the employees authorized to be employed by said act and the compensation authorized to be paid each of said employees.
The plaintiff then alleges that he is a taxpayer, resident and citizen of Oklahoma county, state of Oklahoma, and that he has paid and is now paying taxes in support of the state government. That the defendant has audited, allowed, drawn, and certified to the Treasurer of the state of Oklahoma, warrants and vouchers issued in payment of claims for emoluments and salaries of persons claiming to hold offices and positions in either the House of Representatives or the Senate, and that the said defendant will continue to prepare, audit, and certify such vouchers and warrants to said persons unless
this court issue an order restraining and enjoining the said defendant from preparing, drawing, or certifying, as State Auditor, such vouchers and forwarding the same to the State Treasurer for payment, and alleging that the plaintiff has no plain, speedy, and adequate remedy at law, and praying for an injunction.
This petition was duly verified and presented to the district court of Oklahoma county, and on the 1st day of February, 1929, the district court granted a temporary restraining order, restraining the defendant from paying employees of the legislative department of the government, except those designated in section 109, C. O. S. 1921, until the 5th day of February, 1929, which date was fixed by the court for a hearing upon said order.
On February 5, 1929, the defendant filed his answer, in which he admitted that the plaintiff was a taxpayer, as alleged, and that the defendant is the duly elected, qualified and acting Auditor of the state of Oklahoma, and admitted the employment of various and sundry persons as in the petition described, but specifically denies that said employment is illegal and contrary to law, but, on the contrary, alleges and states that such employment and payment of salaries therefor are specially authorized by House Joint Resolution No. 7 and Senate Joint Resolution No. 10, same being laws of the state of Oklahoma, and specifically authorizing each House of the Legislature to employ temporary help and assistance for the Twelfth Session of the Legislature. Defendant further says that the employment of such persons has been made under and by virtue of such acts and in strict conformity therewith and that such employment is in all things legal and valid, and defendant further alleges and states that the House of Representatives is now exercising its legislative, inquisitorial, and impeachment powers as by the Constitution provided, and that the Senate is now acting as part of the Legislature in regard to legislative matters and also sitting as a Court of Impeachment, as authorized by the Constitution, and that because of such manifold duties and work the employment of temporary help and assistance is an absolute necessity and without same neither House could perform or function as by law provided.
Further answering, defendant alleges and states that by House Resolution No. 5, the House authorized "The Committee of the House on Investigation of Executive, Judicial, Legislative and all Departments of State" to inquire into and investigate state officers and different departments and institutions of state government, for the purpose of presenting impeachment charges, and such committee was specifically authorized to hire and employ all such help and assistance that it deemed necessary for such work; a copy of said resolution being attached to defendant's answer and marked exhibit "I" for identification and made a part of said answer as if fully pleaded therein. That in the exercise of such powers the committee has employed temporarily various and sundry persons, such as process servers, investigators, attorneys, reporters, and stenographic and clerical assistance and that such employment is absolutely necessary, and is in all things legal and valid under the laws of the state of Oklahoma. If it is the intention of plaintiff to have the court inquire into and control the employment of these specific employees, this defendant respectfully suggests that this court is without jurisdiction in the premises on the ground and for the reason that such has been done by the committee as part of the investigation and impeachment proceedings authorized by the Constitution and its action in this regard is not subject to judicial review. Attached to said answer is a copy of House Resolution adopted by the House of Representatives of the state of Oklahoma on the 10th day of January, 1929.
To this answer a reply was filed, denying the allegations of the answer, and further alleging that the act of the Twelfth Legislature and the various resolutions pleaded and set up and relied upon by the said defendant are each and all unconstitutional and are, therefore, insufficient as the defense to the plaintiff's cause of action set out in his petition.
On February 12, 1929, the plaintiff filed his motion for judgment on the pleadings.
The transcript shows certain evidence taken which cannot be considered by this court on this appeal by duly certified transcript instead of case-made.
The trial court rendered judgment vacating the restraining order in so far as the same applied to the committee of the House on investigation of executive, judicial, legislative and all departments of state of the Twelfth Legislature, holding that said committee has full power and authority to hire and employ all necessary help and assistance that said committee may deem necessary and proper in the exercise of its duties under the Constitution and laws of the state of Oklahoma, and that as to said investigating committee the relief asked by plaintiff is expressly denied. The court further found and decreed that the House of Representatives of the Twelfth Session of the
Legislature has full power to employ and hire all necessary temporary help and assistance for the purpose of aiding and assisting the House in the exercise of its inquisitorial and impeachment powers, and in the doing of all work incidental thereto, and that the Senate of the Twelfth Session of the Legislature, and any regularly appointed committee, has full power and authority to employ and hire all necessary temporary help and assistance for the purpose of aiding and assisting the Senate and any such committee in the exercise of its or their powers and duties in regard to investigations, impeachments, and impeachment trials, and all work incidental thereto, and that the authority for such hiring is contained in House Resolution No. 5, House Joint Resolution No. 7, Senate Joint Resolution No. 10, and Senate Bill No. 5 of the Twelfth Session of the Legislature. To which findings and decree of the court, the plaintiff duly excepted and saved an exception, which was by the court allowed.
The court further ordered and decreed that because of section 49, article 5, of the Constitution, neither the House nor the Senate of the Twelfth Session of the Legislature has the power or authority to employ any temporary help or assistance to aid and assist either House in the exercise of its purely legislative powers, as employees for this purpose are provided for in section 109, C. O. S. 1921.
The court therefore ordered that the defendant, A. S. J. Shaw, as State Auditor, be, and he was by the trial court, enjoined from approving and passing any claims or issuing any warrants for any temporary help and assistance employed either by the House or the Senate to aid and assist either House in the exercise of its purely legislative power, to which part of the findings, order, and decree of the trial court the defendant duly excepted and saved his exceptions.
The case is presented to this court upon the petition in error of defendant and the cross-petition in error of plaintiff, in which it is alleged by each of said parties that the portions of the findings and decree adverse to them are contrary to law.
This action being brought to this court by a transcript of the record, this court will only consider the errors appearing in the judgment roll. The petition, the process, the return, the subsequent pleadings, orders, and judgment constitute the judgment roll. Errors which appear in the judgment roll may be brought to this court for review by transcript of the record properly certified to by the court clerk. Mitchell v. White,106 Okla. 218, 233 P. 746.
A motion for judgment on the pleadings is in effect a general demurrer, under section 6067, Comp. Laws 1909. Cardin Bldg. Co. v. Smith, 125 Okla. 300, 258 P. 910. Board of County Commissioners v. Robertson, 35 Okla. 616, 130 P. 947.
On demurrer to an answer as defective, in that it does not state facts sufficient to constitute a defense, the pleading must be liberally construed, and all its allegations for the purposes of the demurrer taken as true. Smith-Wogan Hardware
Implement Co. v. Jos. W. Moon Buggy Co., 26 Okla. 161,108 P. 1103.
The issue for us to determine in this case is: Does the answer state a defense to the plaintiff's petition? If so, the motion for judgment on the pleadings presented by the plaintiff admits the material allegations of the answer, and the order of the trial court modifying the restraining order, as to the additional or extra employees of the Legislature for investigation, inquisitorial, and impeachment purposes and impeachment trial, should be affirmed.
In arriving at a correct solution of this question we must remember that no one clause of the Constitution should be construed by itself and to the exclusion of other portions of the same instrument, but all portions of the Constitution relating to the same question should be construed together and, as far as possible, harmonized with each other. Leach v. State,17 Okla. Cr. 322, 188 P. 118.
In considering a provision of a Constitution, the primary requirement is to ascertain the intention of the framers and of the people who adopted the same, and in such construction and determination technical rules should be disregarded and, as a rule, a mean between a strict and a liberal construction followed. State ex rel. Caldwell v. Hooker, County Judge,22 Okla. 712, 98 P. 964.
A constitutional provision should receive a broader and more liberal construction than is applied to statutes.
Among other things which may be considered in determining the intent of the lawmakers is the evil which it is designed to remedy, and therefore this court properly looks at contemporaneous events, the situation as it exists, and as it was pressed upon the attention of the lawmakers. De Hasque v. A., T. S. F. Ry. Co., 68 Okla. 183, 173 P. 73.
It is not to be presumed that a provision was inserted in the Constitution, or statute, without reason, or that a result was intended inconsistent with the judgment of men of common sense, guided by reason. Mitchell v. Lowden (Ill.) 123 N.E. 566.
As to legislative acts, it is only where the act of the Legislature is clearly, palpably, and plainly inconsistent with the terms and provisions of the Constitution that the courts will interfere and declare such act invalid and void. Munroe v. McNeill, 122 Okla. 297, 255 P. 150.
The universal rule is that the acts of the Legislature will not be held invalid unless they are clearly in conflict with some constitutional provision, and that all doubt, where there is a doubt, will be resolved in favor of the constitutionality of an act. State Board of Dental Examiners v. Pollock,125 Okla. 170, 256 P. 927.
Every presumption will be indulged in favor of the constitutionality of a statute. This presumption is especially strong where the statute has long been acquiesced in, or where great injury would result from declaring it void. Reeves v. State (Okla. Cr.) 253 P. 510.
While we have set out in this opinion numerous expressions by learned jurists relative to statutory and constitutional construction, we are of the opinion that the clearest rule announced by the authorities is found in the case of Lake County Commissioners v. Rollins, 130 U.S. 662, 32 L.Ed. 1060, wherein that court says:
"The object of construction, applied to a Constitution, is to give effect to the intent of its framers, and of the people in adopting it. This intent is to be found in the instrument itself; and when the text of a constitutional provision is not ambiguous, the courts, in giving construction thereto, are not at liberty to search for its meaning beyond the instrument.
"To get at the thought or meaning expressed in a statute, a contract or a Constitution the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. If the words convey a definite meaning, which involves no absurdity nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the Legislature have the right to add to it or take from it."
These fundamental rules of constitutional and statutory construction, in our opinion, will not be questioned, and giving them the weight and consideration that we feel they are entitled to receive, was the district court of Oklahoma county authorized in modifying the temporary injunction so as to exclude from its operation extra employees of the legislative department employed by investigating committees or by the Legislature in exercising its investigating, inquisitorial, and impeachment powers, and was the district court of Oklahoma county correct in its ruling that the Legislature was prohibited by section 49 of article 5 of the Constitution from employing employees for the purposes of conducting the business of the Legislature as mainly a lawmaking body, other than such as were provided for by general law enacted prior to the term at which they were so employed?
We do not feel that it is proper to refer to the employees employed under House Joint Resolution No. 7, and Senate Joint Resolution No. 10, passed by the Twelfth Session of the Legislature, as temporary employees, as, strictly speaking, such employees are not temporary employees, as that word is usually used, for the reason that under the law they might be employed as long, or for a longer period of time than the other employees of the Legislature. It appears to us that it was the intent of the framers of the Constitution, and the people in adopting the same, that the inhibition of section 49 of article 5 should relate to employees of the Legislature employed at its own volition, and not such as they were or may be required to employ in order to carry in force some other section of the Constitution.
There is also a strong reason for holding that this section was not intended to apply to the Legislature acting in its investigating and inquisitorial capacity, or the Senate sitting as a Court of Impeachment, for the reason that the law presumes the validity and regularity of the official acts of public officers within the line of their official duties, and the framers of the Constitution, and the people in adopting it, evidently did so with the thought in mind that the public officers elected by them would discharge their official duties, and if so, then it would not become necessary for the Legislature to investigate or provide funds to impeach such officers, or to employ necessary help to serve the Legislature in its inquisitorial and investigating capacity, or the Senate sitting as a Court of Impeachment.
We are of the opinion that the Legislature, acting in an inquisitorial and investigating capacity, or either House in performing such duties, or the Senate sitting as a Court of Impeachment, is vested with authority to employ such clerks, stenographers,
or other employees as may be necessary to discharge such duties, and that the inhibition of section 49, article 5, of the Constitution was intended by the framers, and the people in adopting the Constitution, that it should apply to the Legislature as a lawmaking body, and does not prohibit the Legislature, sitting in an inquisitorial and investigating capacity, from employing additional employees to enable it to properly function and discharge its duties in such capacities.
We therefore hold that such additional or extra help does not come within the inhibition of section 49 of article 5 of the Constitution.
We further hold that it is for the legislative and not the judicial department of the state government to determine and declare whether or not an emergency exists by reason whereof it is necessary to employ additional clerks, stenographers, process servers, and other employees necessary to serve the Legislature while functioning in its investigating and inquisitorial capacity, and for the Senate sitting as a Court of Impeachment.
Having arrived at the conclusion that the inhibition of section 49 of article 5 of the Constitution does not apply to the Legislature while acting in its inquisitorial and investigating capacity, and the Senate sitting as a Court of Impeachment, does the answer in this case state any facts sufficient to constitute a defense to the plaintiff's petition?
The petition alleges that at the time of the commencement of this action, section 109, C. O. S. 1921, passed by the Legislature in 1915, was the sole and only law or authority for the number of employees, officers, clerical and stenographic, that may be employed by either House of the Legislature. The answer avers and states that the House of Representatives is now exercising its legislative, inquisitorial and impeachment powers, as by the Constitution provided, and that the Senate is now acting as a part of the Legislature in regard to legislative matters, and also sitting as a Court of Impeachment, as authorized by the Constitution, and because of such manifold duties and work, the employment of temporary help and assistance is absolutely necessary. It then pleads House Resolution No. 5, and alleges that under said resolution the House has employed process servers and other assistance.
As far as the employees of the House of Representatives are concerned, we agree with counsel for plaintiff that section 109 of C. O. S. 1921, is the only law in force authorizing the House of Representatives to employ clerks, stenographers, or other employees for carrying on the business of the House, acting as a Legislature, or in its investigating and inquisitorial capacity, but we cannot agree that it is the only law in force relating to the Senate, sitting as a Court of Impeachment. Section 156 of article 2, chapter 2, C. O. S. 1921, provides that when articles of impeachment shall be presented to the Senate, the Senate shall within ten days thereafter organize as a Court of Impeachment, and may, for the purpose of conducting the business of such court, appoint a clerk, who may be the Secretary of the Senate. The clerk shall issue all process and keep a record of the proceedings of such court. The said court shall also appoint a marshal, and an assistant marshal, who shall be its executive officers. It may also employ such stenographic, clerical, and other help as may be required. This section authorizes the employment of certain help, but does not provide for the number of stenographers, clerks, and other help that may be required, and leaves it to future action of the Legislature to fix the number of stenographers, clerical and other help as may be required by the Senate, sitting as a Court of Impeachment, and also to fix the compensation of such employees and to make an appropriation to pay the salaries of such employees.
Section 158, C. O. S. 1921, provides that all process shall be served or executed by the marshal or his assistant, or by any sheriff or deputy in the several counties of the state.
And section 160 provides that witnesses attending before said court shall have the same compensation for travel and attendance, and the same exemptions in going, remaining, and returning, as witnesses in the district court; and officers executing the process and orders of the Senate, when sitting as a Court of Impeachment, shall have the same fees as are allowed sheriffs for like services in the district court. So it will be seen that there was, at the time of the commencement of this action, a law in force providing for witness fees, and the compensation of the marshal of the Court of Impeachment, or his assistant, and for process servers or sheriffs in serving process, the same fees as are allowed witnesses in the district court and sheriffs for serving process in the district court. There is also provision made for certain employees of the Senate, sitting as a Court of Impeachment, when it holds its sessions after the
Legislature has adjourned, and fixing the amount of their compensation, but not the number. But there is no law in force fixing the number or amount of compensation of employees of the House, other than its general employees, provided for by section 109, C. O. S. 1921, and before the Auditor can legally pay said extra employees, it will be necessary for some law to be enacted by the Legislature fixing the number of said extra employees and their compensation, and also to make an appropriation for the payment of such extra employees, and the same must be provided for in separate bills, embracing but one subject, and until that is done, the Auditor would have no authority to pay such employees.
It is claimed by plaintiff that the Legislature has employed extra help at a higher wage than is provided for by section 109, supra, but we find no law where the Legislature has fixed the compensation or emoluments of said extra employees, and therefore the Auditor cannot issue warrants to any employees until the amount of their compensation is fixed by the Legislature, and number determined by the Legislature and a valid appropriation bill passed appropriating money to pay such employees.
If the Legislature has power to employ extra employees to serve the Legislature, acting in its investigating and inquisitorial capacity, and the Senate, sitting as a Court of Impeachment, in order that it may properly function in the manners mentioned, then it becomes necessary that the Legislature provide compensation for such employees, and section 56 of article 5 provides that the general appropriation bills shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the state, and for interest on the public debt, and that the salary of no officer or employee of the state, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee unless his employment and the amount of his salary shall have already been provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject.
So we hold that, before said extra employees above mentioned can be paid, a valid appropriation, under the provisions of the Constitution, must distinctly specify the sum and the subject to which it is to be applied, as public officers have only such authority as is conferred upon them by law, and the Legislature, or either House, cannot delegate to a committee thereof the power to fix the number or emoluments of employees employed by the Legislature, acting in an inquisitorial and investigating capacity, or to either House, in performing such duties, or to the Senate, sitting as a Court of Impeachment, but such employees must be employed under authority of law enacted by the Legislature, and the emoluments or salary of such employees, and the number of such employees, must be fixed by the Legislature, Menefee v. Askew, 25 Okla. 623,107 P. 159.
We further hold that, under section 6 of article 8, the Legislature has the power, and it is its duty, to appropriate such funds by special appropriation bills as may be necessary to carry into effect the provisions of article 8 of the Constitution, and that under section 56 of article 5 of the Constitution, before the Auditor can legally audit and draw vouchers or warrants in payment of salaries to employees of the Legislature, or the House of Representatives, or the Senate, or any legal committee of the House or Senate, or the Senate, sitting as a Court of Impeachment, there must be in force some law of this state authorizing the employment of such employees and fixing the number thereof, and fixing the amount of their emoluments or salary, and an appropriation, either general or special, as authorized by the Constitution, to pay such employees, and such bill, if it affects employees other than those included in the general appropriation bills authorized by the Constitution, must embrace but one subject, which must be clearly expressed therein. Menefee v. Askew, supra.
We therefore hold that there is in force a law providing for the payment of the marshal and assistant marshal of the Senate, and for sheriffs and deputy sheriffs in the several counties of the state in serving process and for witnesses in attending before the Court of Impeachment, and that there is no law in force fixing the number or amount of compensation of extra help for the House while acting in its investigating and inquisitorial capacity, and no law fixing the number or amount of compensation of the clerks and stenographers and other employees of the Senate, sitting as a Court of Impeachment, and until such law is enacted, the defendant would not be authorized to pay such extra employees, and they cannot be paid until an appropriation for such payment is provided for in an appropriation bill passed by the Legislature, designating the amount and the purpose for which such appropriation may be expended.
For the reasons herein expressed, the judgment of the district court of Oklahoma county is hereby affirmed, in so far as it applies to extra help for the Legislature, acting
in purely a legislative capacity, and as to extra employees authorized and provided for by law, and reversed and remanded to the district court of Oklahoma county, with directions to enter a further decree enjoining and restraining the defendant from preparing, auditing, and drawing vouchers or warrants in payment of salaries and emoluments of all extra employees not authorized by law until such time as a law may be enacted by the Legislature appropriating funds to pay such additional help, and to take such other action as may be consistent with this opinion.
LESTER, V. C. J., and CLARK, HEFNER, and CULLISON, JJ., concur.
HUNT, J., concurs in conclusion in so far as same affirms judgment of district court of Oklahoma county in denying injunction, but dissents from that portion of the opinion affirming the district court in granting the injunction as to certain employees.
RILEY and ANDREWS, JJ., dissent.
MASON, C. J., absent and not participating.