I dissent from that portion of the majority opinion construing section 4, chapter 194, Session Laws 1923 [O. S. 1931, sec. 10319], and in effect holding void $28,184.67 in warrants issued under the terms of that act for police patrol and equipment authorized by the board of county commissioners. This appears to be the sum issued in warrants for this purpose before the protests were filed. On September 25, 1928, this court held the act, supra, constitutional and announced the following principles of law in connection therewith: Syllabus parags. 2, 3, 4, and 5, Martin el al. v. Follis, 132 Okla. 162,271 P. 672.
"Section 4, chapter 194, Session Laws 1923, provides: 'For the purpose of enforcing the provisions of this act, any peace officers or specially commissioned officer shall have authority to make arrests for the violations of any of the provisions of this act, and the board of county commissioners of any county is hereby given authority to commission special officers or patrolmen as peace officers to patrol public highways and they shall have authority to make arrests for the violations of any of the provisions of this act or any other act regarding motor vehicles or the usage of public highways or for other violations of law.' Held, the act authorizes all peace officers to enforce it and clothes the county commissioners with authority to commission *Page 243 special officers or patrolmen as peace officers to patrol public highways, which officers have authority to make arrests, not only for the violation of all laws relating to motor vehicles, but also authorizes such officers to make arrests for the violations of laws other than those relating to traffic regulations.
"In passing this act it was doubtless the intention of the Legislature, not only to regulate traffic upon the highways of the state, but to protect the traveling public from reckless drivers, robberies, and other unlawfull acts committed upon or near the highways, and to clothe the special officers with full authority to make arrests for any and all of these offenses.
"The act is not in violation of article 5, section 57, of the Constitution, which provides every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title.
"Every legislative act is presumed to be constitutional, and the court should not declare an act to be unconstitutional unless it is clearly so; and, if there is doubt, the expressed will of the Legislature should be sustained".
And in the body of the opinion we find these words:
"The act authorized all peace officers to enforce the act, and specially authorized the board of county commissioners toappoint special officers or patrolmen as 'peace officers' topatrol the public highways. With the many crimes that have in recent years been committed upon our highways, the Legislature would naturally authorize the peace officers to make arrests for these crimes,"
As to remuneration, the act provides:
"Such arresting officer shall in addition to any remuneration as may be approved by the board of county commissioners receive one-fourth (1-4) of all fines and forfeitures derived through the violations of this or any other act regulating the use of motor vehicles on the public highways of this state, together with the statutory fees allowed constables, and the residue of any such fines or forfeitures shall be deposited with the county treasurer and placed to the credit of the county road maintenance fund. The board of county commissioners shall have such further authority as may by resolution of the board be determined upon as being necessary to properly regulate and enforce the provisions of this act".
Evidently the officials of Oklahoma county, after reading the decision of Martin v. Follis, felt that they had a right to rely on the pronouncements therein. It stated that the act in question was constitutional, and said that "it specially authorized the board of county commissioners to appoint special officers or patrolmen as peace officers to patrol the public highways,". Acting in good faith thereunder, a levy was made for a police patrol, cars, and radio equipment were provided as authorized by the board of county commissioners, and patrolmen were employed who went forth and risked their lives to uphold the law and preserve the peace. There is no contention that these men failed to do their duty, or that their services were unsatisfactory, or that any of the funds were improperly spent.
Approximately $28,184.67 in warrants were issued before any taxpayer protested. The effect of this decision is to hold these warrants void; that those who acted in good faith under the pronouncements in Martin v. Follis, did so at their peril. As a matter of equity I believe these warrants issued to the officers for services and for equipment in the approximate sum of $28,184.67 should not be invalidated. I concur in the remainder of the majority opinion.
On Rehearing.