I concur in the conclusions reached by Justice Lucas in his dissenting opinion and desire to make this additional statement.
Plaintiffs, being the members of the Supreme Court of this state elected at the general election held November 6, 1934, base their right of recovery for services performed and being performed by them under House Bill No. 239, of the Sixteenth Legislature, which, omitting the title and enacting clause, reads as follows:
"Inasmuch as the laws of Oklahoma on civil and probate procedure, including procedure relating to appeals to the Supreme Court, are, by reason of the many apparently conflicting and ambiguous provisions relating thereto which have been enacted since the adoption of the Revised Laws of Oklahoma of 1910, in such a state of confusion and uncertainty that in many cases the rights of litigants and of parties affected are prejudiced, impaired or destroyed, which condition can be most properly remedied by the preparation and publication of an annotated compilation of said laws and proper explanatory notes thereon, it shall be the duty of the Justices of the Supreme Court of Oklahoma who were elected at the regular general election held on November 6, 1934, to prepare, in such manner as they deem proper, an annotated compilation of all such laws, including all laws enacted by the Fourteenth, Fifteenth and Sixteenth Legislatures of Oklahoma; said compilation and annotations to be supplemented by proper explanatory notes, which compilation shall be filed in the State Library as a public record, and as such shall be subject to inspection by the public and to publication by any responsible law book or other publishing *Page 437 company. Said annotated compilation and explanatory notes shall be, from time to time, supplemented by said Justices so as to include any changes occasioned either by legislative enactment or judicial interpretation; provided that said compilation shall be completed and said supplemental services terminated by the second Monday of January, 1941; provided further that before said Justices shall be authorized or required to perform the services defined by this act, same to be performed so as not to interfere with their regular official duties, they shall each file a certificate in the office of the Secretary of State setting forth their willingness to perform said services.
"Section 2. Salary.
"Each of said Justices of the Supreme Court shall receive as compensation for the services required by this act an annual salary of $2,500.00, payable monthly.
"Approved May 22d 1937."
The defendants in their answer plead several defenses, to only one of which I deem it necessary to refer, as it appears to me to be decisive of the question involved; same being that said act is in violation of section 10 of article 23 of the Oklahoma Constitution, which reads as follows:
"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; nor shall the term of any public official be extended beyond the period for which he was elected or appointed; Provided, That all officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified."
In my opinion said act is in violation of said constitutional provision which says:
"That 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."
The framers of the Constitution must have known the meaning of the words used in this section. The word "no" is defined in Webster's New International Dictionary as meaning, "not any; not at all; not in any respect or degree."
The word "emolument" is by the same authority defined as "profit from office, employment or labors; compensation; perquisites, fees or salary."
The pleadings of the parties disclose the fact that the original plaintiffs were the only members of the Supreme Court elected in 1934; that their salaries as fixed by law at the time of their election was the sum of $5,000 per year; that the salaries of the other members of the court, who had been elected prior to 1934, was the sum of $7,500 per year; that the salaries of the members elected subsequent to 1934 was the sum of $7,500 per year.
The bill under consideration clearly shows that no person except a member of the Supreme Court who was elected in 1934 was eligible to perform the services required by said bill and to draw the salary therein provided.
That the services required to be performed by the plaintiffs herein are and will be beneficial to the bench and the bar of this state as well as to the public, I do not dispute; neither, in my opinion, can it be fairly said that the compensation fixed by the Legislature for such services will not have been earned.
That the plaintiffs are performing the same services on the Supreme Court at a salary of $2,500 per year less than the other six members of the court is not disputed; that they perform them as ably and conscientiously as the other members of the court, no person who is familiar with the labors of the court will deny; that the situation, as the same exists, is, as to the plaintiffs, grossly unfair, I think all thoughtful men will agree; but, believing all of this to be true, I cannot subscribe to the opinion that they are entitled to the relief sought.
To adopt the majority view of the court, as set out in its opinion, seems to me to destroy the plain language and intent of the section of the Constitution heretofore quoted, and that said section by the majority opinion is now in effect made to read:
"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, except where the Legislature may provide that said official may receive a salary or emolument from the state, while such official, for duties 'nongermane' to his office."
I am not unaware of the rule that "In passing upon the validity of a statute, every reasonable doubt should be resolved in its favor"; but I am also aware of the rule which says that "Where a statute is clearly violative of a plain constitutional limitation, it will be held void." *Page 438
It is my opinion that the act in question is "clearly violative" under the section of the Constitution heretofore quoted.
This court has never before been called upon to pass squarely upon this exact question, and while it may be that the weight of authority from other states has upheld provisions of their Constitutions similar but not in the exact language of ours, I therefore believe that this court should not commit itself to the doctrine as announced in the majority opinion.
It is not necessary to dwell upon all the evils which can and may flow from the opinion handed down by the majority. Suffice it to say that if said opinion is adopted as the law of this state, in my opinion, the bars are down and the Legislature may at its convenience increase by indirection the salary, emoluments, or compensation of each elected public official regardless of when his term of office may begin. I had always thought that the Legislature is clearly prohibited from doing by indirection that which it cannot do directly.
Believing, as I do, that said act violates the plain provisions of the Constitution of this state, I respectfully concur in the conclusions reached by Justice LUCAS.