The writer of this concurring opinion concurs in the law defining the powers and duties of the State Auditor under the Constitution and laws of this state pertaining to the office of State Auditor, as set out in the opinion by Mr. Chief Justice Harrison, and dissents from the opinion by Mr. Justice Kane wherein it expresses the law different as pertaining to the powers and duties of the State Auditor, but does not concur in the conclusion by Mr. Chief Justice Harrison wherein he holds that the judgment of the trial court is not against the clear weight of the evidence, but does concur in the conclusion in the opinion by Mr. Justice Kane, wherein said opinion holds that the judgment of the trial court denying a writ of mandamus is clearly against the weight of the evidence and that the writ of mandamus should issue.
I do concur in the holding in the opinion by Mr. Justice Kane wherein it is held that the Board of Affairs does not have statutory authority in the letting of contracts pertaining to game preserves, such as fencing the same, and letting of contracts for the *Page 134 state generally. The statutes expressly make the Board of Affairs the contracting agent of the state, and the trial court was in error when it held to the contrary. In fact, there in nothing in the opinion by Mr. Chief Justice Harrison holding to the contrary on this proposition, but in fact it holds that the Board of Affairs has this authority.
The writer of this concurring opinion thinks that his position in this case is such that it is advisable that he give the reasons for his position in the case.
The writer has reviewed the record made in the trial court in this case very carefully, and he has come to the conclusion that the judgment of the trial court refusing the writ of mandamus is clearly against the weight of the evidence. In investigating the record the writer has sought to divest himself of any predilections or preconceived ideas that may have existed in his mind and has labored with an eye single to arrive at what the record shows. It is always the duty of the court to arrive at what the record expresses. It is probably idealism to say that this is always done, but the strength and weight of an opinion lies in the degree to which this idea is approached.
The issues in the trial court were pitched in the pleadings of the plaintiff and defendant, and are as follows: The plaintiff below, plaintiff in error herein, George F. Clark, assumed the burden in his pleadings, and in his proofs, to show that his claim for $43.32 was a legal, just, and proper claim and that the refusal of the State Auditor, F.C. Carter, to allow this claim was unreasonable and arbitrary. The claimant, George F. Clark, in addition to assuming the burden in his pleadings and proofs of showing that his claim was prima facie legal and proper, also assumed the burden of refuting the reasons given by the State Auditor for disallowing the claim.
The reasons stated by the State Auditor for disallowing said claim were based upon three grounds: First. That the claim of the plaintiff in error was illegal for the reason that it was contracted as expense in the performance of a duty that did not devolve upon the State Board of Affairs of which the plaintiff in error was a member. Second. That said claim was fraudulent for the reason that the project upon which the Board of Affairs, together with the Fish and Game Commission, embarked, namely, the advertising and letting of contracts at the town of Smithville for the fencing of the game preserve near Smithville, was not a project in good faith and not in the line of their duty to promote the interests of the state and the people thereof, and that it was only such ostensibly, while in fact and in truth, it was a junketing project, promoted at the expense of the state. Third. That the claim was not presented in the form required by law, and that the receipts and vouchers in support thereof, as charged in the defendant in error's pleadings, were not signed by the parties it is purported signed the receipts.
We will now discuss the proofs adduced by the plaintiff in error in support of the prima facie force of his claim and in refutation of the above charges by the State Auditor. The proofs of the plaintiff show a requisition upon the State Board of Affairs by the game and fish department, for the letting of a contract for the fencing of a game preserve in the Kiamichi mountains near Smithville. The advertisements were made and the 24th day of May, 1920, was set as the day for letting the contracts for the purpose of fencing the game preserve near Smithville. The record shows that some of the bills for some of the preliminary expenses and expenditures were presented and allowed by the State Auditor, and the record shows that all of the preliminary steps taken in this case were the usual steps pursued by the Board of Affairs in the letting of contracts.
It has already been held that this action by the Board of Affairs was in the line of their duty as defined by the statutes. It has been suggested in the briefs and in the record that it was an unusual act on the part of the Board of Affairs to set the place of receiving bids at such an out-of-the-way place as Smithville and that the same should have been set and done at the State Capitol.
At this point we desire to insert this suggestion, which we think is not inconsistent with the law as announced by the court in this case. The law does not require the Board of Affairs to let their contracts from the State Capitol, and the fact that in the instant case the Board of Affairs did not see fit to let the contract from the State Capitol, but saw fit to let it from somewhere else, is not of itself sufficient to invalidate a claim for expenses connected with such letting, and the action of the Board of Affairs in this behalf is attended with the same presumption of good faith as attends the State Auditor in the performance of the duties of his office. The executive departments of the state government are co-ordinate, and no one department has the right to control and direct the policies of any *Page 135 other department and when any department in the performance of its duties becomes related with another department and those relations are handled by any department in such a manner that the manifest effect would be that of controlling, or at least influencing, the policy of the other department, such actions must be held to be arbitrary and unreasonable.
The plaintiff in error assumed the burden of showing, by witnesses, the reasons why the bids were let at Smithville. The evidence shows that the Board of Affairs and certain members of the game and fish department had not seen the game preserve, did not know and understand the problems, physical and otherwise, that it was necessary for them to know, that they might properly dispose of the game.
Upon the question as to the purpose of setting the place for receiving the bids at Smithville and near the game preserve, it is explained in the following portion of the evidence of Mr. Watt, the Game Warden:
"Q. State your name. A. Ben Watt. Q. What position do you occupy? A. State Game Warden. Q. How long have you occupied that position, approximately? A. Since February a year ago. Q. Were you State and Game Warden in April and May, 1920? A. Yes, sir. Q. Mr. Watt, you are acquainted with this McCurtain game preserve, or the game preserve in McCurtain county, are you? A. Yes, sir. Q. Do you have that under your department? A. Yes, sir. Q. State if you have made any requisitions upon the Board of Affairs with reference to the purchase of land and the improvements thereof? A. Yes, sir. Q. Go ahead and state what you did? A. This tract of land that was bought was originally bought from the government, twenty sections. That was the first act of the Legislature appropriated so much money to buy a game preserve and they bought it from the government, twenty sections, and within that twenty sections were approximately a half a dozen sections that had already been sold to individuals. I can show you from this plat about how that was situated down there and the principal object that I had in it. It was a great big proposition and was mountain land, twenty-five or thirty thousand acres of land. Here is the twenty sections that was bought from the government that belonged to the Indians, and within the general boundary of this land there was considerable that had been sold in quarter sections to individuals. When I went in the Game Warden's office, I thought we owned all of these twenty sections. I found out that we did not have any title to these and I took up with these different parties, the purchase of this land. Through the Attorney General's office we made requisition for money to pay for that quarter (indicating), that one (indicating), and that one (indicating), and it had been practically closed. I think the warrant for two of those had been issued. I had the warrant for two of them, and there is 40 acres up in there (indicating) that they don't want to sell. If we ever get it at all it will probably have to be by condemnation proceedings. Since I went into office. I went down and made an examination of its game preserve. I go there every month and stay four or five days and since we bought this, I went down there and when we got there, we found something unusual. We found Linson creek practically dried up. I came back and recommended to the Governnor that unless we could get more land and some land with more water on the game preserve that I would not be in favor of fencing it. It would cost twenty-five or thirty thousand dollars to fence it and probably would have been some hole enough to have kept some water in it, some game, but you could hardly figure on it. It would not run and the holes were, may be, forty to fifty yards apart, so we took up with some people who had bought 2,850 acres of land here, which would give us about a mile and a half of Mountain Fork river, one of the best rivers in the country, that would make plenty of water to insure a game preserve. We obtained an offer for $14,400, and I made requisition on the State Board of Affairs and they closed the deal and I did work in that myself, with the Attorney General's office. We bought the south half of sections 3, 4, 5 and all of sections 8, 9, and 10, which gave us a mile and a half of Mountain Fork river. This land in here (indicating), will probably have to be condemned, and my idea was to have the Board make an inquiry and look over this property and see what they wanted to do. You see, your land runs across there and here and goes across Mountain Fork there (indicating), and leaves out this land entirely. It would take probably a year or two to get it through the court, and all of that. That was one of the principal reasons that I wanted them to go down there. Q. By them, who do you mean? A. The Board of Affairs, the Governor, and the Game Commission, which is composed of the Governor, Secretary of State, and the Game Warden. They had it advertised in this way, one to furnish the wire and another the posts and other to furnish the hauling. You see this is 30 miles from a railroad over rough mountain road, and another question was the erection of the fence itself, and I wanted them to see this land. There was lots of good timber on the land, lots of good oak, and whether it would be advisable to go on there and cut out the fence way and may be if they could get any other bidders, to take a crew of convicts and build the fence ourselves. I just wanted them to know as much about it as *Page 136 I did without saying that I wanted to spend $30,000 or $40,000 without anybody knowing anything about it excepting what I told them. It would have been impossible for the Board of Affairs or for the Game Commission to have formed any sort of an idea of this game preserve without going on the land and seeing how far it was from a railroad and the facilities for getting to the game preserve and the facilities for getting stuff hauled. I had no idea until I went down and hired a horse and took a week to go over and find that we had no water and then we bought this and now we have, what I regard, as one of the best locations for game preserve in the United States. There is deer and turkey and water and everything they need. Q. Now, Mr. Watt are there other lands within that block that they bought from the government for a reserve, that is not owned by the state at this time? A. There are three or four quarter sections in there. Q. I will ask you this. What was the purpose of the Board of Affairs in going down there other than to receive these bids for fencing, if you know? A. All I could say would be what I said to them myself. The reasons that I gave them for it was that I did not believe anybody who would make a bid on it, would make a bid for less than $10,000 or $15,000 more than it was worth to cover the contingency of making water gates and crossings on the streams. I wanted anybody who bid, to know how far it was from the railroad and what it would cost to get the stuff there and how he could fence it. I did not want anyone to take it without knowing that he could make good the bid, so we decided to cut it into concrete propositions as to what the wire would cost, and what the posts would cost, and what the erection of the fence would cost. Nobody bid on it as a whole, excepting, I believe, one man made a bid to take it and build it for ten per cent. of the actual cost. Q. You mean cost plus ten per cent? A. Yes; and I said that I would not make contract myself where the more you spent the more I would get, and now we have a proposition as to what the wire will cost per mile and what the posts will cost per mile and what the erection of the fence will cost per mile, and so far as fencing the game preserve, I don't know what others think of it, but as long as I stay in as warden, I will make an effort to fence the reserve because I think we have it in shape where we have the money to fence it and I don't think we could ever have gotten it unless we had the Board of Affairs to examine the land and anyone who had anything to do with the control of the money to go there and see it. I don't believe that you could sit here and put it over in ten years. You could not talk to a man and tell him enough about it for him to form a reasonable bid. Mountain land is different. Some places it is rock and will cost two dollars a hole to put down the post hole, may be for a mile, and then again it might not cost over 25 cents at other places. I wanted them to see it and even then, they didn't see it. I was there four days ahead of those people, and I don't think there was seven hours in the day that I was not busy going over the proposition with them people to get them to understand what we wanted. We wanted 88-inch woven wire fence with posts not more than a rod apart and at least every four rods we wanted a post that would hold the entire fence up and then, if we wanted to take oak posts in between that would last four or five years then we could take them out and still have a fence that would stand."
The reasons of the Game Warden are apparently good reasons, and at least make a prima facie showing, and being unrefuted in this record, as we view it, are binding upon this court.
We will now discuss the evidence bearing upon the second proposition; that is, as to the junketing trip. The defendant in error, F.C. Carter, upon the witness stand, was asked how he knew it was a junketing trip. In answer thereto he stated in substance: Because he was invited to go himself by Mr. Bird, a member of the Board of Affairs; and furthermore stated in substance that he knew it was a junketing trip because he had heard it discussed by parties who intended to go.
It is possible that some features of a junketing trip may grow out of and be connected with many projects. But the fact that such features may be connected with it would not of itself be sufficient to illegalize and make fraudulent such a project. And it is reasonable to infer from this evidence that the timely warning given by the upstanding auditor that any claims presented would be disallowed probably had the wholesome effect of preventing what might have otherwise been some junketing features connected with this project. But it is not in the mouth of this court to say that because some one who intended to go or did go for the purpose of pleasure, is of itself sufficient to invalidate a prima facie valid project and invalidate a claim of expense which prima facie appears legal and reasonable, and where the claimant is not shown to have gone for such a purpose, and where the specific proofs shows that he went for a valid purpose.
Some of the evidence offered upon the question of the junketing features of this so-called junketing project was that there was talk around the State Capitol that that *Page 137 was the purpose of the trip; and one of the prospective junketers had gone so far as to get up a kit of camping supplies, among which were mentioned crates of eggs. By way of passing comment, we will suggest that the evidence in the record does not show that any of the shells were traced to the claimant in the instant case. The member of the Board of Affairs, Mr. Bird, the member of the board who talked with the defendant in error, the State Auditor, regarding the trip, did not accompany the party, and there is no evidence connecting the claimant in the instant case with the junketing phases of the project.
It must be borne in mind that this is a claim of the plaintiff in error, George F. Clark.
It might be suggested that bad faith is indicated by the fact that, after advertising the bids and making the trip down there, the Board of Affairs failed to let any contract. The following is a portion of the evidence of U.S. Russell, chief clerk of the Board of Affairs, given in the trial of this cause, and it is explanatory of the proceedings had at the meeting and bears upon the question of good faith of the transaction.
"Q. What was the next step you took with reference to the fencing of the game preserve? A. The Board of Affairs authorized to meet on the day set forth in the advertisement, May 24th, at Smithville, Okla. This was done at the request of the State Game Commission, who took the board to view the land and to let the bids at Smithville in order that they would promote local competition and that the natives in that country be given an opportunity to bid 'upon the posts, hauling the posts, digging the post holes, setting them and other features of that contract was cut up into sections to permit the natives of that country to benefit thereby and get competition. The bid for the wire alone was made a separate item. For that reason the board ordered the advertisement to call for session of the board at Smithville, Okla., the nearest post office to the state game preserve. Q. Did you keep the minutes of the board? A. Yes, sir. Q. And you have the minutes with you, have you? A. Yes, sir; I have copies. Q. Certified copies; is that what you hold in your hand the certified copy of the minutes? A. Yes, sir. Mr. Rittenhouse: I ask this paper be marked for identification, exhibit "I" and I offer the same in evidence. Mr. Gore. Objected to as incompetent, irrevelant, and immaterial. The Court: Overruled. Mr. Gore: Exceptions.
" 'I, U.S. Russell, chief clerk of the State Board of Public Affairs, on oath make the following statement:
" 'I, hereby, certify that the records of the State Board of Public Affairs show that upon recommendation of the State Game and Fish Warden the State Board of Public Affairs caused to be published a notice to contractors, a copy of which is hereto attached and said notice to contractors was ordered published, for the general information of the public, in the following legal newspapers published in the state of OOklahoma:
" 'Order No. 22275 to the Daily News, Hugo Okla., authorized publication of said legal notice to contractors one time.
" 'Order No. 22274 to the Daily Tribune, Tulsa, Okla., authorized publication of said legal notice to contractors one time.
" 'Order No. 22273, to the Daily Oklahoman, Oklahoma City, Okla., authorized publication of said legal notice to contractors one time.
" 'Order No. 22276, to the Daily American, Fort Smith, Ark., authorized publication of said legal notice to contractors one time.
" 'All of the foregoing official board orders were issued under date of April 21, 1920.
" 'I further certify that in pursuance of the official notice to contractors referred to above the State Board of Public Affairs convened at Smithville, Okla., May 24, 1920, with Geo. F. Clark, chairman, and J.W. Kayser, vice chairman present, same being a quorum of said State Board of Public Affairs, and that the notice to contactors was read and bids called for. Notification having been received that one bidder had left his proposal with the State Game Warden, who was then at the game preserve, and that said bidder desired to be heard in connection with said proposal, the Board of Public Affairs did then adjourn to give consideration to all proposals at a meeting to be held at the state game preserve.
" 'I further certify that the records of the State Board of Public Affairs show the following entry in the official minutes of the said State Board of Public Affairs:
" 'Smithville, Oklahoma, May 24, 1920.
" 'This being the day set for opening the bids for fencing the game preserve in McCurtain county, the board met in session and received bids from the American Steel Wire Company, the Hudson Wire Iron Company, Paul C. Thorne, and the Long Bell. Lumber Co. It appearing that Mr. Ben Watt, State Game Warden, had one of the bids at the game preserve, the board proceeded to that place and on Tuesday May 25th, opened all bids which were as follows:
" 'The bid of Paul C. Thorne on creosoted posts according to specifications was on the basis of cost plus ten per cent. *Page 138
" 'The bid of the Hudson Wire Iron Company on wire at $1.63 per rod, F. O. B. factory.
" 'The American Steel Wire Company bid on wire $1.433 per rod for fence with stay wires, twelve inches apart and $1,986 per rod with stay wires six inches apart, F. O. B. Pittsburg, Pa.
" 'The Long Bell Lumber Company bid on creosoted pasts at the rate of 17 cents per lineal foot.
" 'Said bids were open and further consideration continued until June 1, 1920.
" 'U.S. Russell,
" 'Chief Clerk, State Board of Public Affairs.
" '(Seal.)
" 'Subscribed and sworn to before me, this the__________ day of__________, 1920. My commission expires__________, 1920.
"Q. Did the Board of Affairs meet on June 1, 1920, pursuant to that adjournment? A. they did. Q. Have you a copy of the minutes of that meeting? A. I have. Q. Is that instrument you have in your hand a true copy of the minutes? A. It is. Q. It has your signature, has it, Mr. Russell? A. It has.
"Mr. Rittenhouse: We ask that this be marked as exhibit 'J' and offer the same in evidence, Mr. Gore: Objected to as incompetent, irrelevant and immaterial, being the meeting of the Board of Affairs alleged to have been had after this claim was filed, The Court: Overruled. Mr. Gore: Exceptions.
" 'Plaintiff's, Exhibit J. " 'Minutes June 1-20. " 'The matter of letting contract to fence the state game preserve in McCurtain county, having been continued on May 24th, was taken under consideration, and after hearing a report from the State Game Warden on a proposition made by a contractor who was delayed in viewing the premises, it was the judgment of the State Board of Public Affairs that the letting of a contract for fencing the said State Game Preserve In McCurtain county be postponed indefinitely, and it was so ordered.
" 'I. U.S. Russell, Chief Clerk of the State Board of Public Affairs, do hereby certify that the above is a true copy of the minute entry of the said State Board of Public Affairs under date of June 1st, 1920. U.S. Russell, Chief Clerk, State Board of Public Affairs."
This evidence of the chief clerk of the board as to the proceedings of the board seems to be a satisfactory explanation as to why the board did not act and let the bids. This record and explanation is not attacked or refuted and is, therefore, binding upon this court.
Upon the question as to whether this claim was presented in proper form and as the law requires, the record shows that it was made out on a regulation form and the one usually used in presenting claims. One of the specific objections to the claim by the State Auditor pertain to two items. One was the item of G.C. Johnson for auto hire. The receipt, the auditor claims, showed to have been raised from $5 to $10. Also as to the two items for auto hire by Will James for $10 each. The objection to these two items was that the receipt appeared to be signed by Will James in the claim presented by Clark, while in a claim filed by J.W. Kayser, another member of the State Board of Affairs, and disallowed by the State Auditor, there appears an item of Will James in this last named claim, for auto hire where Will James signs a receipt by his mark. The condition of these receipts, unexplained, would leave them under suspicion.
George F. Clark assumed the burden of explaining these items in the evidence given by himself, and states that he paid the actual money as shown by said receipts in both the Johnson and James items: that the charge in the Johnson item was, for the actual money that he paid to Johnson, and that the two charges in the two James items were for actual money he paid James for his auto hire for his (Clark's) transportation, and that Will James could not write his name and that some one wrote his name to the receipt at the time the money was paid him. This evidence by the plaintiff in error undoubtedly makes prima facie showing for the good faith of these items and unrefuted, is binding upon this court, and we find nothing in the record in any way refuting this positive evidence of the claimant.
Thus were the issues joined, and thus were the issues met by the evidence. The law, as pertaining to the powers and duties of the State Auditor, as defined by the majority of this court, holds the auditor to be a checking officer upon claims against the state. He has the power and it is his duty to refuse to allow a claim that he is satisfied in his own mind is illegal or fraudulent and that he has the right to prescribe reasonable rules and methods of presenting claims to him for Allowance. And in the event that he acts disallowing a claim, and the claimant feels that the auditor has acted in an arbitrary and unreasonable way, his remedy *Page 139 is a proceeding in mandamus as in the intant case; and in such proceeding it then becomes the duty of the claimant to assume the burden of showing the arbitrary conduct of the auditor in disallowing his claim; and when the claimant has made prima facie showing of the validity and good faith of his claim, then the burden shifts to the State Auditor to show the illegality or the fraud of the claim, or both.
In the instant case, the auditor called upon the claimant to show for what purpose the expenditures were made. The answer of the claimant to this request was, in substance, that it was for expenses connected with the business of the Board of Affairs. This the auditor did not seem to regard as sufficient answer to his request. If the claimant had made such a showing in response to such request as is made in the record in the instant case, or anything approximating it, we can only conjecture as to what would have been the attitude of the State Auditor toward the claim; but it is our duty to presume that he would have acted in a reasonable way and would probably have allowed the claim.
The law, as contended by the minority opinion, on the law in this case, is that it was the duty of the auditor to take evidence upon the question as provided in the statute and to examine the claimant and other witnesses, and since he failed to do this, the claim should be taken as presumptively valid and bona fide. To this I do not agree; but do agree with the holding of the minority opinion on the law in this case that the provision as to examining witnesses is merely directory and the auditor can do this if he so decides, or he may satisfy himself in any other manner.
But when the State Auditor becomes the defendant in a mandamus proceeding and the question arises as to whether he has or has not acted in an arbitrary manner, then, in that proceeding, after the evidence on the part of the plaintiff becomes sufficient to shift the burden, it then becomes necessary that the State Auditor "place his cards on the table" and show the reasons for his action. Reasons within his own bosom cannot be considered by this court. It is only the evidence disclosed by the record and the probative force of the same that is presented therein under the rules of evidence, that should control this court in its decision.
The writer's view is that the State Auditor has failed in the instant case to make a sufficient showing in rebutting evidence of the claimant, and the writer thinks that the judgment of the trial court in refusing the writ was clearly against the weight of the evidence.