The preliminary questions are whether the trial court, possessed of the dual powers of a court of equity and a court of law by the Code, was vested with jurisdiction to settle the whole controversy presented to it under the pleadings, whether it was the duty of the trial court to settle the whole controversy in one decree, and whether defendant in error's motion to dismiss the cause on appeal should have been sustained.
Lew H. Wentz, the defendant below, became a member of the State Highway Commission by appointment of the then Governor, "by and with the advice and consent of the Senate," for a term of six years ending April 1, 1935, under the provisions of an Act of the Legislature approved April 1, 1929 (ch. 68, S. L. 1929, p. 86) [O. S. 1931, secs. 10072-10073] and by his acceptance of the appointment, his having duly qualified for the office and his entrance upon the duties thereof. It is admitted that defendant never resigned or abandoned the office.
On April 1, 1932, Honorable William H. Murray, Governor, signed, issued, and caused to be filed an "Executive Order of Removal," which instrument had for its purpose the removal of Lew H. Wentz from the said office and from all connection whatsoever with said State Highway Department.
By said executive order, the State Auditor was directed to cease the issuance of "warrants of salary or other compensation" to the said Lew H. Wentz, as a member of the Highway Commission, and the said Lew H. Wentz was thereby sought to be removed "from the service of the state, in any form whatsoever."
On the same day the Governor signed and *Page 133 delivered to the plaintiff below, Maude O. Thomas, an "Order of Appointment," which instrument had for its purpose the appointment of Maude O. Thomas to be Republican member of the State Highway Commission in lieu of Lew H. Wentz, so that she might serve the unexpired term of office of the said Lew H. Wentz.
On the same day Maude O. Thomas took, subscribed, and caused to be filed with the Secretary of State, the statutory oath of office. Likewise she subscribed and caused to be filed a bond conditioned upon her faithful performance of the duties of said office, and without the knowledge of Lew H. Wentz she took physical possession of the office theretofore occupied by the said Wentz. She has ever since remained in possession of the said office.
On April 4, 1932, by order of the Governor, two guards of the State Bureau of Criminal Investigation were assigned to guard the plaintiff, Maude O. Thomas. They were stationed at the door of the office, the title to which is now in dispute in the State Capitol. These guards remained on duty until a restraining order, issued by the court below, was served on the defendant.
On April 4, 1932, there was publisheed and widely circulated an article, prepared the previous day by Lew H. Wentz, wherein was denied the truth of the statement of facts contained in the "Order of Removal" and wherein he challenged the authority of the Governor to either remove him from said office or appoint the said Maude O. Thomas to the said office. Therein also Wentz announced his intention to continue to function as a member of the Highway Commission.
On April 4, 1932, Maude O. Thomas, as plaintiff, commenced this action in the lower court. She alleged her possession of the office; that defendant Wentz was unlawfully claiming right and title to the office and his threatened interference with her possession. She prayed restraint as against Wentz to enjoin him from interference with her in the possession and discharge of the duties of the office. A restraining order was issued April 4, 1932. On April 7th defendant filed an answer and cross-petition. On the same day an agreed statement of facts was filed, a trial by jury was waived, and the cause was submitted "on this agreed statement of facts."
On April 19th plaintiff filed her reply and a demurrer to the cross-petition, also an answer to the cross-petition, without prejudice to the question raised by demurrer. On April 25th the court (a) sustained the demurrer to the cross-petition on the ground that it was not germane to the subject of plaintiff's action; (b) decreed that plaintiff, Maude O. Thomas, had no prima facie title to the office, and that she was in the unlawful possession thereof; and (c) adjudged that the Highway Act approved April 1, 1929, was constitutional and valid; (1) that its provisions contained "the sole and only source of the Governor's power to appoint a member of the Highway Commission of the state of Oklahoma"; (2) that defendant Wentz "can be removed from said office only by a court of competent jurisdiction"; (3) "that the Governor has no power to remove a member of the Highway Commission"; (4) that the Governor's "Executive Order of Removal" dated April 1, 1932, "is null and void"; (5) that the Governor's "Order of Appointment" dated April 1, 1932, "is null and void'; (6) "that the defendant, Lew H. Wentz, and not the plaintiff, is a member of the Highway Commission of the state of Oklahoma"; (7) "that the plaintiff is not lawfully in possession of the office of member of the Highway Commission; that plaintiff has no prima facie title to the office * * * and is not entitled to any relief in this case."
Plaintiff's petition was dismissed.
Plaintiff filed motion for new trial. It was overruled. The defendant did not file motion for new trial.
On April 25, 1932, both parties, in open court, gave notice of intention to appeal to the Supreme Court.
The defendant appealed from the action of the lower court in sustaining the demurrer to defendant's cross-petition and based it upon his oral notice in open court and his subsequent written notice filed in the court below within ten days from date of judgment.
While plaintiff gave notice of intention to appeal to this court, she has not, within the time allowed by original journal entry of judgment, nor until this date, perfected an appeal.
On June 2nd plaintiff filed a motion to dismiss defendant's appeal based upon the ground that: (1) (a) the appeal is from an order sustaining a demurrer to defendant's counterclaim; (b) that it is not a final judgment; (c) that it is not appealable until final judgment has been entered dismissing the counterclaim; and (2) that defendant *Page 134 did not file a motion for a new trial. This motion to dismiss was denied by the court on the 13th day of July, 1932.
A motion for new trial and judgment overruling it are not a prerequisite to appeal from an order sustaining a demurrer. Barnett v. Tabor, 154 Okla. 20, 6 P.2d 787; McGrath v. Rorem, 123, Okla. 163, 252 P. 418; Clapper v. Putnam Co.,70 Okla. 99, 158 P. 297; Gamble v. Emery, 94, Okla. 167,221 P. 514; Mires v. Hogan, 79 Okla. 233, 192 P. 811; Pace v. Pace,70 Okla. 42, 172 P. 1075; O'Neil v. James, 40 Okla. 661,140 P. 141; Buxton v. Alton-Dawson Merc. Co., 18 Okla. 291, 90 P. 19.
By virtue of section 780, C. O. S. 1921 [O. S. 1931, sec. 528] an appeal may be taken from an order sustaining a demurrer to a counterclaim prior to rendition of final judgment. Okmulgee P. R. Co. v. Davis, 99 Okla. 4, 225 P. 550; Cont. Gin Co. v. Hull, 25 Okla. 800, 108 P. 369; Wesley v. Diamond,26 Okla. 170, 109 P. 524; Ashley Silk Co. v. Okla. Fire Ins. Co., 33 Okla. 348, 125 P. 449; Bd. Co. Comm. v. Robertson,35 Okla. 616, 130 P. 947; Smith v. Kennedy, 46 Okla. 493,149 P. 197; Knebel v. Rennie, 87 Okla. 136, 209 P. 414; Nation v. Chism, 154 Okla. 50, 6 P.2d 766; Crites v. City of Miami,80 Okla. 50, 193 P. 984.
The statute reads in part:
"The Supreme Court may reverse, vacate or modify judgment of the * * * district court, for errors appearing on the record, and in the reversal of such judgment or order, may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof. The Supreme Court may also reverse, vacate or modify any of the following orders of the * * * district court, or a judge thereof. * * *
"Second: An order that * * * sustains or overrules a demurrer.
"Third: An order that involves the merits of an action, or some part thereof."
In Nation v. Chism, supra, this court held:
"It is not necessary that there be a dismissal of the action before an appeal to the Supreme Court may be taken from an order sustaining a demurrer to a petition, where the pleader elects to stand on the petition, and on appeal it is not necessary to allege error in dismissing the action where the action of the trial court in sustaining the demurrer to the petition is alleged to be erroneous."
Such is the rule in Kansas from whence came our Code. Bartholomew v. Guthrie, 71 Kan. 705, 81 P. 491.
We repeat and adhere to the rule long since adopted in this state.
Moreover, if finality of judgment by dismissal be required for such an appeal, which is not the rule, in fact finality of judgment existed, for the trial court sustained demurrer to the cross-petition, held it was not germane, suggested an independent action in the nature of quo warranto, and dismissed plaintiff's petition. The sum and substance of such action was finality of (decision. Rosenberg Bros. Co. v. Curtis Brown Co., 260 U.S. 516, 67 L.Ed. 372; In re Pesaro, 255 U.S. 216, 65 L.Ed. 592.
Hutchison v. Wilson, 136 Okla. 67, 276 P. 198, and Waldock v. State, 146 Okla. 257, 293 P. 1023, and other decisions relied upon by defendant in error are not applicable nor decisive of the question of dismissal. They are upon the doctrine of "piecemeal appeals." Therein this court held that an appeal did not lie from an order sustaining a demurrer to portions of defendant's answer for the reason stated in Tobly v. Dekinder,85 Okla. 288, 206 P. 201, i. e., for if such orders "were appealable * * * before final judgment there would never be any end to litigation." Such reasons, and therefore the suggested rule, are inapplicable to the question presented, for if the cross-petition is not germane to, the plaintiff's petition as found by the trial court, then its aims and objects ceased. It became and was functus officio.
When the demurrer was sustained to defendant's cross-petition he was met with the alternative of (1) excepting to the order sustaining the demurrer and appealing to this court; or (2) amending his cross-petition, if possible, so as to await final judgment, from which an appeal might be had. By act and conduct he elected his remedy by exercising his right of appeal (under the provisions of section 780, C. O. S. 1921) [O. S. 1931, sec. 528] from the order sustaining the demurrer to his cross-petition. 9 R. C. L. 956; 20 C. J. 19.
It is not necessary that the judgment or order contain a recitation of an election — no proclamation of an election by the litigant is required for the simple reason that actions speak louder than words. Okmulgee Prod. Refg. Co. v. Davis,99 Okla. 4, 225 P. 550; Bartholomew v. Guthrie (Kan.) 81 P. 491; Exc. Oil Co. v. Crews, Guard., 90 Okla. 245, 216 P. 674.
Nor, under the circumstances, was, a motion for new trial required.
The circumstances were that the parties *Page 135 agreed "To submit the application for temporary injunction and this case for trial on the facts and on the pleadings on this agreed statement of facts." Barnett v. Tabor, 154 Okla. 20,6 P.2d 787; St. L. S. F. Ry. Co., v. Nelson, 40 Okla. 143,136 P. 590; Bd. Co. Com'rs v. Porter, 19 Okla. 173, 92 P. 152; C., R.I. P. Ry. Co. v. Shawnee, 39 Okla. 728, 136 P. 591; Sch. Dist. No. 38 v. Mackey, 44 Okla. 408, 144 P. 1032; Dunlap v. Herring Lbr. Co., 44 Okla. 475, 145 P. 374; Durant v. Nesbit, 59 Okla. 11, 157 P. 353; Henry v. McBride,102 Okla. 41, 225 P. 906; Garland v. Union Trust Co., 63 Okla. 243,165 P. 197; McGrath v. Rorem, 123 Okla. 163, 252 P. 418; Patterson v. Carter, 83 Okla. 70, 200 P. 855; Wright v. Lamb,108 Okla. 16, 232 P. 373.
The agreed statement of facts "is equivalent to a request by both parties for a directed verdict, and constitutes an admission that only questions of law are involved and that there is no disputed or controverted question of fact in the case." 38 Cyc. 1935; Goodwin v. Kraft, 23 Okla. 329,101 P. 856; Anderson v. Keystone Sup. Co., 93 Okla. 224, 220 P. 605; McGaffey v. Mulky, 115 Okla. 44, 241 P. 480; Con. S. W. Co. v. Burnham H. M. Co., 8 Okla. 514, 58 P. 654; F. N. Bk. v. Worley, 100 Okla. 254, 220 P. 234.
The issue of law "could have been brought up on a transcript" (Board Co. Com'rs v. Porter, 19 Okla. 173, 92 P. 152), for "the pleadings, the agreed statement of facts, and the judgment are all parts of the record, and no motion for new trial is necessary for the Supreme Court to review the judgment of the trial court rendered upon such agreed statement." Patterson v. Carter, 83 Okla. 70, 200 P. 855; Durant v. Nesbit, 59 Okla. 11,157 P. 353; St. L. S. F. Ry. Co. v. Nelson, 40 Okla. 143,136 P. 590; Wright v. Lamb, 109 Okla. 16; Baker v. Hammett,23 Okla. 490, 100 P. 1114.
"When the error is apparent upon the face of the judgment roll * * * then such error will be considered by the appellate court, although not presented to the trial court in the motion for new trial." Kellogg v. School Dist. No. 10, Comanche Co.,13 Okla. 285, 74 P. 110; Int. Harvester Co. v. Cameron,25 Okla. 256, 105 P. 189.
In such circumstances no exception is required. Caffrey v. Overholser, 8 Okla. 202, 57 P. 206; Gourley v. Williams,46 Okla. 629, 149 P. 229; Terr. of Okla. v. Caffrey, 8 Okla. 198,57 P. 204; Std. Ency. of Procedure, vol. 2, p. 273.
The motion to dismiss this cause was on the 15th day of June assigned to the referee of this court for examination and written report. Upon the referee's written recommendation based upon citations and authorities, this court, without dissent, overruled the motion to dismiss. We adhere to the ruling made.
We approach the question as to whether the lower court erred in sustaining demurrer to the cross-petition.
Section 273, C. O. S. 1921 [O. S. 1931, sec. 206] provides:
"The answer shall contain: * * * Second. A statement of any new matter constituting a defense, counterclaim or set-off,or a right to relief concerning the subject of the action * * * and without repetition. Third. * * * Set forth, in his answer, as many grounds of defense, counterclaim, set-off, and forrelief, as he may have, whether they be such as have beenheretofore denominated legal or equitable or both."
There is no division in form between actions of law and suits in equity in Oklahoma, but an Oklahoma court having jurisdiction to administer relief will administer it dependent upon the facts whether it be at law or in equity or both. Sections 178, 226, C. O. S. 1921 [O. S. 1931, secs. 4, 116, 159]; West v. Madansky, 80 Okla. 164, 194 P. 439.
In commenting on the change in common-law pleading and chancery practice wrought by statute, Sutherland says — Code Pleading, vol. 1, sec. 87:
"The pleader is required only to state the facts which constitute his cause of action * * * the old rule was 'form and not substance,' the Code rule is 'substance and not form'."
"Legal and equitable remedies may now be sought in the same action where they relate to the same subject-matter. The nature of a cause of action is to be determined rather from the object and purpose of the suit than from the character of the evidence which is necessary to sustain it."
The gravamen of the wrong alleged by plaintiff below, the gist of the action at bar, the essence of this lawsuit and the resulting subject of this action, is:
"Right and title to the office occupied by and now in possession of the plaintiff."
By virtue of article 7, sec. 10, Constitution, the district court is vested with power to issue writs of quo warranto, and it possesses original jurisdiction thereby vested in all cases, civil and criminal, except where exclusive jurisdiction by the Constitution or *Page 136 law is conferred on some other court. Such judisdiction is not elsewhere otherwise conferred, but section 459, C. O. S. 1921 [O. S. 1931, sec. 766] expressly provides that "such action" (meaning a civil action to try title to office in lieu of quo warranto) may be brought in the Supreme Court or in the district court." Newhouse v. Alexander, 27 Okla. 46,110 P. 1121; Garrett v. London, 107 Okla. 72, 229 P. 1074.
The lower court adjudged that:
(1) Plaintiff Maude O. Thomas "is not lawfully in possession of the office of member of said Highway Commission," and that she, the plaintiff, "had no prima facie title to the office. * * *"
(2) "That the defendant, Lew H. Wentz, and not the plaintiff is a member of the Highway Commission of the state of Oklahoma."
Thus, by the judgment rendered, actual possession of the office and title to the office were separated. Whenever such a separation occurs, unquestionably there exists in the subject of the action a connected unremedied public wrong.
The conclusion of the lower court was that it would do nothing about it — it dismissed the action, notwithstanding that contained in findings from the pleadings and agreed statement of fact exclusive of the cross-petition, the court adjudged the plaintiff to be a usurper of public office and notwithstanding that by cross-petition the defendant sought restraint against such usurpation of the public office and judgment of title to the office as a de jure member of the Highway Commission, as plaintiff had sought in and by her petition.
It is impossible that two persons can at the same time be de jure officers of the same office. So without yet determining the person to whom title to the office belonged, by reason of its dual power under the Code, the trial court erred in failing to grant complete relief. Both parties urged it; the statute contemplated it. Section 462, C. O. S. 1921 [O. S. 1931, sec. 769]. The public right demanded it.
Until the time of oral argument no good reason appeared for the failure of the lower court to administer complete relief. Upon oral argument it was stated, without dispute, that the reason was the lower court was advised that in event it adjudged possession to Low Wentz, the Governor of this state would use such force as was necessary to retain Maude O. Thomas' possession of the office until this court had adjudged the matter. The inference was that the lower court was afraid. Such is no reason, but a resort to expediency. This court has long since expressed the view that "A judge who, knowing his duty, does not dare discharge it, is unworthy of high office. The judicial ermine should be stripped from him and he should pass into oblivion. The inference is not justified. We denounce such aspersions cast upon the learned trial court. It may have been that the lower court, in view of such intimidation, resorted to the ancient rule that a court of equity would not perform a useless and futile act. That rule is not applicable, for this court as a superintending agency of the judiciary of the state is ever ready and willing to support the lawful judgments and decrees of inferior courts. Nor was there any occasion for a threat of the use of force, for if the ultimate judgment was unlawful or apparently in error, the aggrieved party had recourse to this court for stay of judgment or supersedeas pending final determination in this court of the judgment.
Force has no place in determination of a judicial issue. The mind is not free in the presence of coercion. Force has a function to perform when resistance is made to judgments rendered. It is the Governor's duty to "cause the laws of the state to be faithfully executed," which duty "applies chiefly to giving effect to the decisions of the courts when resisted by physical force." State ex rel. v. Rowe, 149 Okla. 247,300 P. 727.
In Bynum v. Strain, 95 Okla. 45, 218 P. 883, defendant Bynum demurred to the petition of Strain. It was overruled. Injunction was granted to restrain Bynum from taking possession of the office of Bank Commissioner of the state. Appeal was perfected and this court swept aside ancient forms of practice to determine the merits of the cause in the spirit of modern Code procedure. Mr. Justice Harrison, speaking for this court, therein said:
"* * * The cause is here upon two propositions, to wit: (1) That this being a suit for injunction, but primarily involving title to office, it is not the proper proceeding, and therefore, the petition fails to state a cause of action. (2) That the Governor having legal power to do the things complained of, plaintiff has no legal grounds for complaint, and for this reason has stated no cause of action."
In disposing of the contention that the court in the injunctive action presented did not have jurisdiction to try title to office this court said: *Page 137
"As to the first proposition, it is true, as has been held by this court, and generally, so held by courts of other jurisdictions, that neither injunction nor mandamus is the proper remedy for trying title to office, holding the proper procedure to be by proceedings in quo warranto. * * * This is true * * * for the very simple and fundamental reason that title to office is purely a legal question, a title created by statute and determined by statute, hence the chancery powers of a court are not called upon, and will not be exercised, cannot be properly exercised, until as a court of law, it has first determined the legal right. The claim for relief being based upon an undetermined legal right equity will not respond until the legal right is first determined. Upon these underlying principles of procedure, the courts have held that the legality of title to office cannot be determined by a proceeding in equity; legal rights are not determined by chancery powers."
At that point attention was called to the fact that under our Code the court is endowed with dual powers of a court of equity and a court of law, so that "redress for every remediable wrong may be had by a civil action upon the facts stated in a pleading called a 'petition'."
"So, where a pleading is called a 'petition' as the statute provides, and contains a statement of facts, * * * which shows on their face and from their nature that plaintiff has wrongfully sustained a detriment, a wrong for which either law or equity will grant redress, then * * * the court, vested * * * with the dual powers of a chancellor and court of law will determine and grant the proper relief."
In that case it was then observed that the petition under consideration did specifically state (1) the acts complained of, (2) that they were void, (3) that plaintiff was thereby unlawfully wronged, and it did pray for general relief, that is, for such relief as the facts stated would warrant the court in granting, and it was held that the petition "contained a sufficient statement of facts to give the court jurisdiction todetermine the legality of the Governor's acts and therebydetermine the legal right." "Hence," it was adjudged, "the court had jurisdiction to first determine the legal right, and then grant such equitable relief as was necessary to protect and enforce the legal right so determined."
In view of the rule stated in Bynum v. Strain, supra, we now examine into the petition filed by plaintiff. It alleges that she is the "duly appointed, qualified and acting commissioner and member of the State Highway Commission of the state of Oklahoma, under and by virtue of the laws of the state of Oklahoma." That she "is in possession of such office and exercising its duties and functions in the manner provided by law." And that "the defendant has been, and now is unlawfully claiming the right and title to the office occupied and now in" her "possession." The prayer is for injunction and for other and further relief.
We examine the answer containing the counterclaim. The answer admits that defendant "has been and is now claiming the right and title to the office." It alleges that he is the de jure commissioner for a term of six years expiring April 1, 1935, and pleads that plaintiff is usurping the office. The prayer is for injunction, judgment of title to the office, and other and further relief.
The agreed statement of facts, which became part of the record or judgment roll, deraigns title, if any, of both parties, to the office.
We possess the firm and fixed conviction that the pleadings, under our Code, presented a justiciable question of law. It presented more than a one-sided controversy, wherein relief could be granted or denied the plaintiff; it presented the whole question as to which, if either of the parties, was entitled to the office. It was and is a two-edged sword, by which the right of one of the parties to the office will be severed. For, under our law, a person entitled to the office and emoluments thereof may maintain an action in the nature of quo warranto. Section 460, C. O. S. 1921 [O. S. 1931, sec. 767]; Bartlett v. State, 13 Kan. 99; Robinson, Co. Comm., v. Chapman, 158 Okla. 244, 13 P.2d 173; Newhouse v. Alexander,27 Okla. 46, 110 P. 1121; Garrett v. London, 107 Okla. 72,229 P. 1074; Ekern v. McGovern (Wis.) 142 N.W. 595, 46 L. R. A. (N. S.) 822.
The petition not only alleged that plaintiff, in the manner provided by law, was in possession of the office, but it also alleged that defendant unlawfully was claiming the right and title to the office. Such allegations do not concern, nor contemplate, the being of a de facto officer, nor do they encompass the abhorrence of the law toward a vacancy in office, nor do they encroach upon the restriction of public policy preventing any citizen or taxpayer exercising the right to try title to public office, thus to so harass a public officer from beginning to end of his term that he may not attend to the duties of office. But they present naked and undisguised the *Page 138 whole and sole proposition as to whom shall go the right and title to the office. It is the broad proposition that Mr. Lincoln spoke about at Alton, Ill., in his famous debates with Mr. Douglas, when he said:
"That is the real issue. That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles — right and, wrong — throughout the world. They are the two principles that have stood face to face from the beginning of time; and will ever continue to struggle." Reply at Alton — October 15, 1858.
This proposition was supported by "a sufficient statement of facts to give the court jurisdiction to determine the legality of the Governor's acts and thereby determine the legal right."
Section 273, C. O. S.. 1921 C. O. S. 1931, sec. 2061 provides that the answer shall contain a counterclaim or a right to relief concerning "the subject of the action," and provides that defendant may set forth in his answer as many grounds of defense, counterclaim, set-off and for relief as he may have, whether they be such as have been heretofore denominated legal or equitable or both.
The counterclaim pleaded fell within the terms of section 274, C. O. S. 1921 [O. S. 1931, sec. 207] as being "the right to relief concerning the subject of the action * * * necessarily or properly involved in the action for a complete determination thereof, or settlement of the question involved therein." Clark v. Duncanson, 79 Okla. 184, 192 P. 806; Pomeroy's Code Remedies (5th Ed.) 644; Bliss on Code Pleadings, sec. 371.
Its contents were within the provisions of the section as being "connected with the subject of the action." Its subject was one "arising out of the * * * transaction set forth in thepetition as the foundation of plaintiff's claim" Pomeroy's Code Rem. (5th Ed.) sec. 650; Story Isham Com. Co. v. Story (Cal.) 34 P. 671.
It was germane and sufficient to raise an issue which would be decisive of the controversy. The whole theory of the law with reference to counterclaims is to prevent a multiplicity of suits. Sutherland on Code. Pleading Practice and Forms, sec. 267; N.W. Port Huron Co. v. Iverson, 22 S.D. 314, 117 N.W. 372. Its provisions should receive a liberal construction.
The defendant's "right" to relief," i. e., possession and/or title to the office, "is necessarily" and/or properly involved for the complete "determination thereof" and/or settlement of the question involved."
Even though we consider for argument,'s sake that possession of the office and not title to the office is the subject of the action involved, nevertheless the title to the office is "connected with" the possession of the office and therefore properly involved for a "settlement" of the issue presented.
The issue presented is the "subject of the, action." It is not confined to that which plaintiff seeks in her petition, whether it be possession or title to the office, but it extends to "action."
"Action," as here used, contemplates "a proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right (or) the redress or prevention of a wrong. * * * "Section 172, C. O. S. 1921 [O. S. 1931, sec. 9] "A party" is equally applicable to plaintiff or defendant, and the privilege to "prosecute a right" is available to either plaintiff or defendant in our modern forums of justice.
The right and its infringement is what the action is about It is the subject of the action. The primary right and the wrong are the elements of the subject of the action. Stone v. Case,34 Okla. 5, 124 P. 960. "While the elements of the cause ofaction are the wrong and the right to redress." Bliss on Code Pleadings (3rd Ed.) sec. 126.
The only justifiable reason at any time existing in law for the trial court's failure to enter a judgment in "settlement of the question involved" was one of form, and that the modern code and the practice adopted has abolished. Kimball v. Connor,3 Kan. 425; Calaghan v. Irvin (Tex. Civ. App) 90 S.W. 335; Walker v. Hopping (Tex. Civ. App.) 226 S.W. 146; Hastings v. Montgomery, 142 Okla. 48, 285 P. 89; McGhee v. Milburn,85 Okla. 17, 204 P. 279; McArthur v. Moffett, 143 Wis. 564, 33 L. R. A. (N. S.) 264.
The lower court had jurisdiction to determine the whole controversy (section 458, C. O. S. 1921 [O. S. 1931, sec. 765]. In fact, by the text of its judgment it will be observed that it did decide the whole controversy. Assuming, without deciding at this point, the correctness of the lower court's view of the law, it should not have withheld complete relief, for section 462, C. O. S. 1921 [O. S. 1931, sec. 769] not only provides for a judgment in favor of the person entitled to the office, but in addition makes it the duty of the court to order the one not *Page 139 in his custody or within his power belonging to the office" Baugh v. Barrett, 69 Iowa, 495, 29 N.W. 425; West v. "Madansky, 80 Okla. 161, 194 P. 439.
Legal and equitable actions are included within the term "all cases, civil," as used in article 7, sec. 10, Constitution. By virtue of sections 178 and 266, C. O. S. 1921 [O. S. 1931, secs. 4, 116, 199] a district court, having acquired jurisdiction of the persons and possessing jurisdiction of the subject-matter of an action in equity, will retain jurisdiction to administer complete relief, whether nature of that relief be legal, equitable, or both.
"Ordinarily, it is the duty of the court to render such judgment as on the whole record the law requires without regard to any request or want of request therefor." Fox v. Fox,117 Okla. 46, 245 P. 641; 21 R. C. L. 489; Fraley v. Wilkinson,79 Okla. 21, 191 P. 156; Pittsmount Copper Co. v. O'Rourke (Mont.) 141 P. 849; Averill v. Vermont Valley R. R. (Vt.) 92 A. 220.
"Even under the procedure in courts of equity in states where distinctions between courts of law and courts of equity are maintained, where a court of equity properly acquires jurisdiction over the subject-matter and the parties, it retains jurisdiction until complete relief is granted according to the facts in the case." West v. Madansky, supra; Pomeroy's Eq. Juris. (3rd Ed.) vol. 1, p. 342; Murray v. Speed,54 Okla. 31, 153 P. 181.
The Wisconsin court, in Ekern v. McGovern, supra, where the cause, as here, was commenced for injunctive relief, presented the inquiry to itself:
"Should the court rest in a case of this sort, having reached a point calling for judgment indicating the primary right — right to immunity from being forcibly dispossessed by illegal methods — leaving the more important question the right to the office, undetermined? * * *
"Must parties in such a case, though in the court having jurisdiction to settle the whole controversy, depart with but partial relief and none as to the ultimate matter, and come back, not really in another form of action, because we really have but one, but asking another form of relief * * * and from a practical standpoint, including it?
"Under our liberal Code of Procedure, rightly understood and administered, is it true that such devotion to mere form is necessary, commendable or really right?"
The answer was:
"* * * There is no judicial difficulty in the way of the trial court finally disposing of the whole controversy between the parties.
"The right to protection against violent disturbance, pending settlement of the title, was the primary right. The right to the office was incidental thereto, and had to be judicially settled sometime. * * *
"The count having jurisdiction of the parties and of the primary subject-matter was competent to settle the whole controversy — the main issue and all the incidental controversies connected therewith — in a single decree."
Therein it was held that the legal right and issue as to title to the office was germane to the primary equitable issue of protection against violent disturbance of or interference with the possession of the office pending settlement of title, and that where it appears justice will best be subserved thereby, the court should settle the whole controversy in a single decree.
We follow that rule.
Under the state of the record the trial court erred in its failure to grant complete relief in one decree to the party thereto entitled. Stamps v. Tittle (Tex. Civ. App.)167 S.W. 776; Mathews v. Sniggs, 75 Okla. 108, 182 P. 703; Callaghan v. Irvin (Tex. Civ. App.) 90 S.W. 335; Walker v. Hopping (Tex. Civ. App.) 226 S.W. 146; Blain v. Chippewa Circuit Judge (Mich.) 108 N.W. 440; West v. Madansky, supra; McKay v. Kelly,130 Okla. 62, 264 P. 814.
We now proceed to determine the particular party, if any, entitled to complete relief, and in so doing we are confronted with the paramount question whether the Governor is possessed of power to remove from office a member of the State Highway Commission.
"* * * If there be a law and a properly presented controversy as to its meaning, it then becomes the duty and a proper province of the judiciary to interpret such law and declare its meaning. The executive will then be guarded by the court's interpretation of the law and will execute the court's mandates." Bynum v. Strain, supra.
What is the law applicable? It is House Bill 284, ch. 68, S. L. 1929, p. 86 [O. S. 1931, secs. 10072-10073). It creates a
State Highway Commission consisting of three members and provides for their appointment by the Governor, by and with the consent of the Senate. It fixes their terms of office and the terms of office of their successors, and it provides, by the second paragraph of section 1 that:
"Any commissioner appointed under the provisions of this actshall hold office for the term for which the appointment ismade. Provided, that any such commissioner may *Page 140 be removed from office only by any court of competent jurisdiction for willful neglect of duty, corruption in office, drunkenness, incompetency, or any offense involving moral turpitude committed while in office."
What the Legislature has said in the foregoing paragraph of section 1 is unambiguous and clear. The intent is obvious from its plain language.
The highway commissioner so appointed "shall hold office for the term for which the appointment is made."
"There can be no justifiable mistaking of the above language." Bynum v. Strain, supra.
Now the appointment of Wentz is agreed to be for a term of six years, ending April 1, 1935. So then, by the words of the statute, his right to the office is continuing to the day, month, and year first above stated, subject to (1) his continued being, and (2) remaining, a resident of the state, (3) his resignation, or (4) his conviction of any infamous crime or any offense involving a violation of his official oath. Section 132, C. O. S. 1921 [O. S. 1931, sec. 3408]. The proviso, by the law, established the exception by which his right and title to the office may not exist. It is that "any such commissioner may be removed from office only by any court of competent jurisdiction for" specified and enumerated causes.
We now turn to the agreed fact:
"Lew H. Wentz has not resigned or abandoned said office, * * * and he has not been removed or suspended from office of member of such Commission by 'any court of competent jurisdiction' and no proceedings therefor have been instituted in any court"
The agreed facts contemplate his being. The executive order of removal (Ex. "A") contemplates his being "a member of the State Highway Commission" prior to the purported removal, which is tantamount to an admission of his having qualified at the) time of removal. The law says but one thing, it implies but one thing, viz., "May be removed from office only by any court of competent jurisdiction," not by the Governor. It specifies the grounds for removal and selects the department of the government which is to ascertain the establishment of the grounds for removal or any of them.
Can it be said in good faith that the language means that the "Governor shall exercise the power of removal or determine the cause for removal"? Or is the assumption of the exercise of such power anything other than an assumption of power, not warranted by law?
The language of the law makes it both clear and emphatic as to the duration of term of such an officer, the, department of government vested with the, power to remove from office, and the grounds to be ascertained and determined by that agency so vested with such power of removal.
This law cited and quoted, if constitutional and valid, is decisive of the paramount question, as to whether the Governor is possessed of power to remove from office a member of the Highway Commission, and the resultant question as to whether Lew H. Wentz is entitled to a writ bestowing the office upon him, for if there was no vacancy, it is elementary that the appointment of Maude O. Thomas to the office is void.
In Bynum v. Strain, supra, it, was held that: "It is unnecessary to decide this case upon the doctrine that the power to remove, is an incident to the power to appoint, although," it was said, "the federal courts have uniformly adhered to such doctrine, and in our opinion, the far better reasoned cases from the state courts have concurred in the same doctrine," "but," it was there held, "it is unnecessary to resort to that doctrine in a determination of this case; the statute has determined it." So the statute has determined the issue here.
It is unnecessary to consider in this case or in this state, as applied to the Governor incidental or implied power of removal, for by general statute, section 2, C. O. S. 1921 [O. S. 1931, sec. 3522] "in case of incompetency, neglect of duty or malfeasance in office," "the Governor shall have power to remove any officers appointed by him."
Now, in the absence of inapplicability of such a statute, resort and consideration might be had to incidental or implied powers such as was presented in City of Ardmore v. Sayre,54 Okla. 779, 154 P. 356, wherein the question was whether the power of the mayor to appoint carried with it the power of removal, and wherein it was held that: "Such seems to be the general rule adopted in this state, unless prohibited by statute." Cameron v. Parker, 2 Okla. 277, 38 P. 14. However, it is the law that where a particular statute is applicable, a general one has no function to perform. The Highway Act, supra, applies to the office here involved. Section 2, C. O. S. 1921, is not applicable. The Highway Act functions to eliminate from consideration incidental or implied powers of removal by the appointing authority, for it not only expressly vests *Page 141 the removal power in the courts, but in addition it prescribes that such vesture of authority is the "only" power of removal and that it is to exercise only upon the establishment of specified grounds or causes or some one of them. If the Highway Act is unconstitutional, then the general statute (section 2, C. O. S. 1921) is applicable, so that implied power is in no event material.
While it may be and it is the true rule that implied powers sometimes are carried along with vested powers, in order that a department or an office may function, yet it is impossible that with a specific divestiture of power from a department and with a specific vesture of that power in another department, there would remain in the first department an implied power as an incident to a power abrogated.
Is this act of divestiture and vesture of powers of removal constitutional?
As applied to the state as differentiated from the federal government, in order to determine the constitutionality of law, it is not necessary that we look to the Constitution to ascertain authority of the Legislature for the enactment of a statute, but it is necessary only that we look to the Constitution to ascertain whether there is any prohibitive limitation against its enactment, for "in the absence of prohibitive limitation, the Legislature would have" such power. Bynum v. Strain, supra.
The federal government is one of delegated, enumerated, and limited powers, so that when an act of Congress is assailed, as being void the judges must look to the federal Constitution to determine whether the specific grant of power is sufficient to embrace it, whereas, the power of the Legislature to enact a law is subject to no restriction, except those imposed by state or federal Constitution. Briefly, the federal Constitution must authorize an act of Congress, but a legislative act is valid unless prohibited. U.S. v. Harris, 106 U.S. 629, 27 L.Ed. 290; Grafton v. U.S., 206 U.S. 233, 51 L.Ed. 1084.
Cooley says (Const. Lim. [8th Ed.] vol. 1, P. 354):
"The government of the United States Is one of enumerated powers; the governments of the states are possessed of all the general powers of legislation. * * * Congress can pass no laws but such as the Constitution authorizes either expressly or by clear implicattion, while the state Legislature has jurisdiction of all subjects on which its legislation is not prohibited."
The object of the state Constitution, says Cooley, " is not to grant legislative power, but to confine and restrain it; without the constitutional limitations, the power to make laws would be absolute."
In the City of Denison v. Municipal Gas Co. (Tex. Civ. App.)257 S.W. 616 (see, also, 3 S.W. [2nd] 794), the Texas court said:
"* * * The state Legislature is virtually omnipotent in the matters of legislation except in so far as the inhibitions of the Constitution plainly or by clear and necessary implication limit its power."
"* * * In all cases of doubt and until it is made clearly to appear that they contravene some constitutional provision," says the Indiana court, Overshiner v. State, 156 Ind. 187, 83 Am. St. Rep. 187, the General Assembly's acts "are to be upheld by the courts," thus the burden is upon the assailant of the constitutionality of such a law to point out the particular provision of the Constitution that has been violated.
Our own court, in State ex rel. v. Hooker, 22 Okla. 719,98 P. 964, express the view that:
"In creating the legislative department and in conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in and may be exercised by the sovereign power of any countrysubject only to such restrictions as they may have seen fit toimpose, and to the limitations which are contained in the Constitution of the United States. The legislative department of a state is not made a special agency for the exercise ofspecifically defined legislative powers, but is intrusted with the general authority to make laws at discretion."
This is necessarily the rule in our state, for the Constitution by section 36, art. 5, by specific grant, provides:
"The authority of the Legislature shall extend to allrightful subjects of legislation. Any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever."
Thus the basic law by which the act of Congress was measured in the Myers Case (272, U.S. 52, 71 L.Ed. 160) has no application to the case at bar, for there the query was, Does the federal Constitution authorize Congress to create an office to be filled by the appointment of the President by and with consent, etc., and restrict the removal to a joint action of the President *Page 142 and the Senate? The supreme Court of the United States by a majority answered the query, "No."
The question at bar is, "Does, the state Constitution prohibit the Legislature from creating an appointive office and vesting the power of removal exclusively in the courts?" Miller v. Childers, 107 Okla. 59, 238 P. 204.
The Myers Case involved the construction of the federal Constitution and the relative powers of Congress and the President. We are here concerned with the state Constitution and the relative powers of the Legislature and the Governor.
The decision of the Supreme Court of the United States in the Myers Case is not binding upon this court.
"Its decisions upon questions arising out of the federal Constitution and federal statutes are binding on us; but so, on the other hand, our decisions upon questions arising out of our state Constitution and our state statutes are binding upon it. At the same time upon that wide domain which is presented by general jurisprudence, the federal Supreme Court and the state Supreme Court hold an equal and divided jurisdiction, our opinions are not binding upon it, nor its opinions upon us." Franklin v. Kelly, 2 Neb. 85; Black's Law of Judicial Precedents, 366.
The Myers Case held void a section of an act of Congress providing that "postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law. * * *" The court's opinion and decision was that Congress did not have authority to take away from the President and vest in the President and the Senate jointly the power of removal.
This was the construction placed upon sections I and 2 of art. 2 of the federal Constitution by Congress under the expressed views of Mr. Madison in the famous debates of the first session of Congress in 1789. The federal rule is that the federal Constitution vests the power of removal in the President as an incident to the President's constitutional power of appointment. This federal rule of construction went unchallenged until the tenure of office act was adopted as a part of the reconstruction program in 1867.
There was adherence to the rule in Parsons v. U.S.,167 U.S. 324, 42 L.Ed. 185 (May, 1897). It was applied as early as 1839, in Re Hennen, 13 Pet. 230, 10 L.Ed. 138.
But, as pointed out heretofore, there is a fundamental difference between the federal and state governments. No case decided by a state Supreme Court has been called to our attention and we know of none where it is held that the Legislature in creating an office cannot vest the power of removal in the courts except where there was a constitutional provision expressly conferring the power of removal upon the Governor. In other words, state courts do not apply the federal rule to state Constitutions. Mr. Justice Brandeis so states this distinction in his dissenting opinion in the Myers Case.
Willoughby on the Constitution, vol. 2, p. 1187, published 16 years before the Myers decision, says:
"* * * It seems to be established that the right of removal from office exists, in the President unless taken away in plain and unambiguous language, and that it is by no means certainthat it may be taken away even when such language is used. In the states, however, this doctrine does not apply to the Governor. Here it has been generally held that he has noinherent power of removal. * * *"
By virtue of section 2 of the Code, carried forward from the Territorial Laws of 1890, and re-enacted in 1913, by the adoption of the R. L. of Oklahoma, specific power is vested in the Governor to remove any officer appointed by him, for causes enumerated. This is a general statute not applicable to the case at bar except that it shows a legislative construction that no inherent or incidental power of removal vests in the Governor. If it did, what was the necessity of a statute granting the right? The federal rule announced in the Myers decision construing the federal Constitution is not persuasive because of the fundamental difference between the powers of the Governor and the President of the United States.
Section 1, art. 2 of the federal Constitution, provides simply:
"The executive power shall be vested in a President of the United States."
Section 2, art. 2, Fed. Const., provides:
"* * * And he shall nominate., and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, Judges of the Supreme Court and all other officers of the United States whose appointment are not *Page 143 herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
Thus it is obvious, as was settled in the Myers decision, that all executive power of the federal government is vested in the President, and that except as to inferior offices the appointment of officers for the federal government is a function to be performed by the President. The Hamiltonian idea of centralization of power there prevailed. It was quoted:
"In that which grants the executive power, the expressions are: The executive power shall be vested in a President of the United States.' The enumeration ought therefore to be considered as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power. * * *"
Thus the decision, as applied to the federal Constitution, was: The moment an office and its powers and duties are created, the power of appointment and removal, as limited by the Constitution, vests in the executive."
There is no general provision contained in the Constitution of Oklahoma such as section 2 of art. 2, federal Constitution, vesting the appointing power in the Governor, but to the contrary, section 13, art. 6, Constitution of Oklahoma, provides:
"The Governor shall commission all officers not otherwisecommissioned by law." "When any office shall become vacant, he shall, unless otherwise provided by law, appoint a person to fill such vacancy, who shall continue in office until," etc.
It was the view in the Myers Case "that Congress is only given power to provide for appointments and removals of inferior officers after it has vested," i.e., after the creation of the inferior office with a provision for appointment and removal of such officer "in other authority than the President." Here it may be observed that the section under consideration provides merely that as Congress "think proper" they may vest the appointment of such inferior officers "in the President alone, in the courts's of law, or in the heads of departments." There was no constitutional provision nor implied provision for vestment of removal power in the Senate as was sought to be done, except that it may be considered the head of its department in so far as its clerks are concerned. No doubt with the rule of construction in mind as to determination of the constitutionality of an act of Congress the Supreme Court of the United States held, "the provisions of the second section of art. II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication." By reason of section 13, art. 6, and section 36, of art. 5, Constitution of Oklahoma, the Legislature of Oklahoma may provide as it thinks proper for the selection and removal of an incumbent of an office created by it, subject only to limitations contained in the Constitution.
It is not contended by defendant in error that "the act of appointment or the act of removal is exclusively legislative, executive, or judicial" either under our Constitution or "in nature." P. 83, Brief.
The contention is that "the criterion is not the act itself, but the department of government to which the office is properly assignable." The asserted basis of the contention is section 1, art. 4, Constitution, which provides:
"The powers of the government of the state of Oklahoma shall be divided into three separate departments, the legislative, executive and judicial; and except as provided in this Constitution, the legislative, executive and judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."
It is urged that by reason of the foregoing constitutional provision the Legislature, despite the broad grant of power contained in section 36, art. 5, Constitution, supra, was not possessed of authority to divest the executive department of removal power as applied to an appointed executive officer, for the reason that such an act did not constitute a "rightful subject of legislation." No decision so holding from any state is cited and we know of none. Sibert v. Garrett, 197 Ky. 17, 246 S.W. 445, is relied upon; the words therein used are, the "appointing agency should, perhaps, be selected from the department to which the duties of the office necessarily appertain." Nothing therein relates to removal. The decision therein concerned whether the Legislature itself could appoint an executive officer *Page 144 or whether, under the mandate of the Constitution, it should simply provide for the appointment. This contention has never before been urged during the quarter century of this state's existence, while to the contrary, all the Governors of this state, including the learned counsel who urged the proposition, have executed the laws under the contrary construction by executive appointments of district and superior judges to fill vacancies within the judiciary. The various messages of the various Governors, upon the condition of state, are eloquently silent upon any suggestion to the Legislature for a change by statute, for the policy now urged, so as to provide for inferior judicial appointments by the judicial department.
To the contrary, in Leedy v. Brown, 27 Okla. 489, 113 P. 177, this court held that by virtue of statute the district court was vested with power to suspend from office an executive officer and that such a grant of power by statute was, "not in conflict with section 1, art. 4, of the Constitution." The view there expressed was:
"The whole matter of removal or suspension from office, the causes for which, and the mode in which it may be effected, not being expressed in the Constitution, is a proper subject of legislation. It is a part of the sovereignty of the state — part of the, lawmaking power, and is not either expressly or impliedly withheld from the General Assembly."
Doubtless the creation of a Highway Department is a rightful subject of legislation. Section 1, art. 16, Const. Doubtless the creation of offices within that department is a rightful subject of legislation. Doubtless the vesting of the appointive power in the Governor by and with the advice and consent of the Senate is a rightful and well-considered subject of legislation. No doubt the Legislature had power under the general grant to provide for removal of the officer to be appointed. Whether to remain silent as to the removal power and thus permit section 2, C. O. S. 1921 [O. S. 1931, sec. 3522] to govern, or whether to express, it and vest it in the judicial branch of the government, was a matter of legislative discretion.
The discretion by the Legislature exercised was a rightful subject of legislation under the Constitution. Without doubt a district court, being a court of general jurisdiction, would have power to hear and determine causes for removal of such an officer.
Moreover, section 1 of art. 4, Constitution supra, does not wholly inhibit the exercise of the powers properly belonging to one department by either of the others, for the provision is, "except as provided in this Constitution." There is an exception otherwise contemplated in the Constitution, for, by section 36, art. 5, it is stated:
"Any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation or exclusion of such authority upon the same or any other subject or subjects whatsoever."
Now, by section 60 of the same article, the duty is cast upon the Legislature to provide a system of checks and balances between officers of a department. Certainly there is no inhibition against the power of the Legislature to continue a system of checks and balances in resistence of instability of tenure of office based upon whim or caprice of the appointing power by placing the removal power in another and proper department.
Furthermore, such an act may properly be considered a part of a "system of checks and balances between officers of the executive department, and all commissioners * * * and boards of control of state institutions."
Such is the rightful subject of legislation.
The Myers decision held:
"* * * Article 2 grants to the President the executive power of government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers — a conclusion confirmed by his obligation to take care that the laws be, faithfully executed."
In Marberry v. Madison, I Cranch, 137, 2 L.Ed. 60, the Chief Justice of the United States, Marshall, speaking for the court, said in reference to the powers of the President.
"To aid him in the performance of these duties he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders. In such cases their acts are his acts, and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion." State ex rel. Haskell v. Huston,21 Okla. 802, 97 P. 982.
The Constitution of Oklahoma makes no such investiture of executive power in the Governor. *Page 145
Section 1, art. 6, Const. of Oklahoma, provides:
"The executive authority of the state shall be vested in a Governor, Lieutenant Governor, Secretary of State, State Auditor, Attorney General, State Treasurer, Superintendent of Public Instruction, State Examiner and Inspector, Chief Mine Inspector, Commissioner of Labor, Commissioner of Charities and Corrections, Commissioner of Insurance, and other officersprovided by law, and this Constitution, each of whom * * *shall perform such duties as way be designated in thisConstitution or prescribed by law."
"And while each must operate within the general comprehensive sphere of the executive department, with the Governor as Chief Executive, yet each is endowed with a limited independence and held directly responsible to the electorate for the discharge of its specified duties. But the Banking Department is not one of this class; it is a department within the distinctive sphere specially prescribed to the Governor, such as the Board of Affairs." Bynum v. Strain, supra.
"The executive authority, by section 1, art. 6, Constitution, was vested and parceled out to a Governor, Lieutenant Governor and certain other constitutional executive officers, therein named." In re Initiative Pets. No. 112 et al., 153 Okla. 233,6 P.2d 703.
Thus it is plain that the Constitution of Oklahoma vested the executive authority, not as by the federal Constitution, in one official, but in twelve separately named officials and with provision for future legislative vestment of executive authority "in other officers provided by law and this Constitution." "each of whom * * * shall perform such duties as may be designated in this Constitution or prescribed by law," thus evidencing the specific instruction, except as otherwise provided for, that these officers were not to perform duties under the direction of the Chief Executive, but to do their duty as outlined in the Constitution and laws. Thus there was adopted the admonition of Wellington as expressed to the soliders, "Do your duty as an Englishman."
The Governor has no constitutional power to appoint (except to fill vacancies) or remove any of the other executive officers named in the Constitution (except Bank Commissioner, sec. 1, art. 14, Const.). They are elective by and responsible to the sovereignty for the faithful discharge of their duties. The Governor is not responsible to the sovereignty for the faithful performance of the duty of any of them. Except that upon their commission of impeachable offenses he should recommend their impeachment to the Legislature. They can be removed from office only in the manner provided by the people in their Constitution.
Thus it is obvious that the Hamiltonian idea of a centralized form of government by a concentration of all executive authority in one office, was not the public policy adopted by the people and expressed in Constitution of Oklahoma. To the contrary, the Constitution of this state embraced the political idea of a plural executive department. One consisting of many executive officers who would obey the law rather than policy of a man who might happen to occupy the position of Governor.
There is a fundamental difference between the federal and state governments as to where an undefined power rests. If a power exists in the federal government which has not been expressly or by necessary implication vested in the courts or in Congress, then it is vested in the executive department, but as applied to the states it is "a well-settled political proposition that, whenever the legislative powers of a government are undefined, it includes the judicial and executive attributes." (I Peters' Cond. R. 213.)
"The executive and the judiciary, therefore, can exercise no powers but such as are granted, while the Legislature can exercise all powers not forbidden." Field v. People, 3. Ill. 111.
The Legislature is the General Assembly, with its historic power to give expression to the people's will upon all rightful subjects of legislation. It is possessed of all powers of government not denied it, reserved to the people, or delegated to the federal government or the executive and judicial departments of state government. The executive and judicial officers, in the strictest sense, are mere agents or servants of the people, and vested with mere delegated authority and powers.
The Illinois court in Field v. People, 3 Ill. 79, said:
"In deciding this question (power of the Governor) recurrence must be had to the Constitution. That furnished the only rule by which this court can be governed. That is the charter of the Governor's authority. All the powers delegated to him by, or in accordance with that instrument, he is entitled to exercise, and no others. The Constitution is a limitation upon the powers of the legislative department of the government; but it is to be regarded as a grant of powers to the other departments. Neither the executive nor the judiciary, therefore, can exercise any authority or power, except such as is clearly granted by the Constitution. *Page 146 * * * Upon the principle of our government, that the sovereign power of the state resides in the people, and that only such powers as they have delegated to their functionaries can be exercised, where a claim of power is advanced by the executive, the question is, not whether the power in question has been granted to the people, but whether it has been granted to the executive; and, if the grant cannot be shown, he has no title to the exercise of the power."
Thus it is seen that "the supreme executive power" vested in the Governor by section 2, art. 6, Constitution, is, in fact, just that executive authority not otherwise vested by the preceding section of the Constitution and that it is only such specific executive power as is by the Constitution granted to the chief executive or required for the performance of such duties "as may be designated in this Constitution or prescribed by law." This "supreme executive power" does, not extend to the execution of all duties pertaining to the executive department of government.
The Governor, as an agent of the people with only delegated, restricted, and limited executive powers, possesses no inherent right "to appoint to office (Fox v. McDonald, 101 Ala. 51, 13 So. 416, 46 Am. St. R. 98), nor to remove from office." Nolan v. State, 118 Ala. 154, 24 So. 251 (cited and quoted under section 2, art. 6, of Wms. Const. Enabling Act of Oklahoma), but under the words of the Constitution of Oklahoma, the creation of offices, the fixing of tenure, emoluments, duties, the manner of filling them, whether by election or appointment, the selection of the appointing or removal power and the causes for removal are "all rightful subjects of legislation." State ex rel. v. Hooker, 22 Okla. 719, 98 P. 964.
"* * * Unless limited by constitutional restriction, the General Assembly may exercise all governmental power. But under our system of government it is limited by the establishment of the two other departments, and prohibited from the exercise of any power confided to them." People v. Morgan, 90 Ill. 558.
In Miller v. Childers, 107 Okla. 59, 238 P. 204, this court said:
"While Congress of the United States may do only that which the federal Constitution has granted unto it the power to do, the Legislature may, in a general sense and as to rightful subjects of legislation, do all except that which by the Constitution it is prohibited from doing." Hovey v. State,119 Ind. 395, 21 N.E. 21; Dunbar v. Cronin, 18 Ariz. 583, 164 P. 447.
The basic soundness of the different rule applicable to Congress is appreciated when it is observed that by the federal Constitution, section 1, art. 1, it is merely provided that: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives," and by section 8, of art. 1, the legislative powers granted are specifically enumerated, whereas by the Constitution of Oklahoma (section 46 to 53, of art. 5) there is a specific enumeration of limitations upon the Legislature. There is no such provision in the state Constitution as contained in section 1, art. 1, federal Constitution, supra, nor is there such a provision in the federal Constitution as contained in section 36, art. 5, Constitution of Oklahoma, for the authority of Congress does not extend to all rightful subjects of legislation except where inhibited.
By reason of the nature of the federal structure of government, if there is a doubt as to whether a given power has been lodged in the executive or legislative department, the doubt is by the courts resolved in favor of the executive department, for Congress has no power except those granted to it. To the contrary, if there be a doubt, as applied to the state, whether a power has been lodged in the executive, the doubt is resolved in the negative, because the executive department is one possessed of delegated, enumerated, and limited powers. Consequently, in determining the validity of an act of the Legislature of Oklahoma delegating exclusive power of removal to the courts, in order to adjudge the act unconstitutional and so void, we must have a provision of the Constitution forbidding the Legislature to so vest the removal power. There is no such provision.
There is a fundamental difference between the office of President of the United States and Governor of Oklahoma. The executive officers of the federal government under the President constitute his alter ago, they are subject to his orders and are expected to carry out his political policies, whereas the executive officers named in the Constitution of Oklahoma, and the members of the Highway Commission, are not subject to the Governor's orders, nor directions as to duties except where that power is expressly granted to the Governor by the Constitution or statute (nor are they in theory officially concerned with the Governor's political policies.)
"It is not within the power of the Chief Executive to prevent the State Examiner and Inspector from discharging any duty imposed upon him by virtue of the Constitution or the statutory law as in force in this state." State ex rel. Taylor v. Cockrell, 27 Okla. 630, 112 P. 1000. *Page 147
But it was held the duties of that officer "are to be discharged by him independent of the Chief Executive of this state."
"The state executive officers below the Governor, with few exceptions, are as independent of his control in the performance of their duties as are the officers of the counties or of the townships." State ex rel. Atty. Gen. v. Huston,27 Okla. 606, 113 P. 190.
As applied to the executive officers under the President, "the discretion to be exercised is that of the President" and the President may remove such an officer because he does not consider his decision wise. Myers v. U.S., supra.
Therefore "the President needs as an indispensable aid to meet it (responsibility under the Constitution for the effective enforcement of the law) the disciplinary influence upon those who act under him of a reserve power of removal."
"In such cases they are exercising not their own but his discretion * * * Each head of a department is and must be the President's alter ego in the matters of that department where the President is required by law to exercise authority. * * * His cabinet officers must do his will * * * he must have the power to remove without delay * * * all appointed by him." Myers Case, supra.
The Governor has no such powers over elective officers of the state of Oklahoma, nor over officers appointed by him who are not directly accountable to him for the discharge of duty.
The President possesses a power in the executive department approaching that of a king.
See modification of sovereign's power as to appointment of judiciary (13 William III C2) cited in State ex rel. v. Rowe,149 Okla. 240, 300 P. 727. Thereunder and thereafter the judge held over after the reign of the King. It is recalled that, without express provision of law, certain executive officers, particularly cabinet members, hold over beyond the administration of the President appointing them and without reappointment and reconfirmation by the Senate. (Ex-Secy. of Treas. — Mellon).
"At common law, the theory, was that the King was the head and fountain of all office. * * * In legal contemplation, the incumbent held directly from and under the Crown, one of the implied conditions of such holding being that the duties of the office should be properly discharged. * * * It consistently resulted that a ruler, clothed with such powers as these, should, subject to the limitations already defined, be also invested with the superintendency over public officers. Every officer was the deputy of the sovereign: the condition of the tenure was good behavior, and on the breach of such condition, the King, as the general patron of official franchise and the representative of the public interests, was empowered, in the mode prescribed by the law, to have a forfeiture of the office declared." State ex rel. v. Pritchard, 36 N.J. Law, 101.
But even the King was required to resort to the mode prescribed by law, and a court was empowered to return a decree forfeiting an office as a condition precedent to removal and appointment of the King's selection.
"But none of these royal prerogatives, which so appropriately embrace an absolute control over all public offices, are to be found among the powers which go to make up the authority of the executive of this state." Idem.
"Neither theoretically nor in practice is the executive the fountain of office." Idem.
"Nor are public offices franchises of the executive, nor does he distribute them among his deputies." Idem.
"According to the policy of this commonwealth, all public office proceeds, in theory and in fact, from the people." Idem.
There is marked distinction between the powers of the President and those of the Governor, and for this reason this court has declined to accept the federal rule stated in the Myers Case, but prefers to follow the one suggested by the statement of it in converse in the case of Cameron v. Parker, supra, and City of Ardmore v. Sayre, 54 Okla. 779, 154 P. 356, which is that, where prohibited, the appointing agency has no power to remove.
There is contained in the terms of the Highway Act under consideration a prohibition against removal, and, as apparent from a survey of the powers of the Legislature, that department of state, possessed of the residuary powers of government granted by the sovereign people to the government, and possessed as it is of this power to provide for the appointment to, and this power to provide for the removal from, an office created by the Legislature, the authority is its to exercise, or to confer as it sees fit. In other words, the department of government most liberally bestowed with powers from the citizen, and thereby most nearly approximating the sovereignty, possesses the authority to delegate the power of appointment and the corresponding power to deny and prohibit the exercise of the removing power.
From whence comes the power of the Governor to appoint such a Highway Commissioner? *Page 148 The inevitable answer is: From the legislative act in the name and by the authority of the people of the state of Oklahoma. Then, if it be a proper act to give it in whole, it must be a proper act to give in part or with restrictions, as was done, i, e., "by and with the advice and consent of the Senate." And if it be proper to restrict the exercise of appointive power, it would seem proper to restrict or extend tenure of office, subject to the limitation contained in the Constitution. In other words, the Legislature's authority under section 36, art. 5, Constitution, may be exercised by denying to the executive the power to remove an executive officer for reasons of policy, thus divorcing a branch of the administrative or executive department of the state from vicissitudes of partisan politics (such as the Board of Regents of the University of Oklahoma, or the State Board of Agriculture except as to the President). The proper exercise of this authority is by the creation of a definite term of office and the establishment of just causes for removal, and the selection of an agency to hear and determine the sufficiency of the causes of some one of them. A proper modification of this is the limitation of the period of time embraced in a term, at the end of which a new personnel may be selected. A modification of the modification is to stagger the terms of office whereby the personnel of a board is not inexperienced as a whole at any one time. All this the Legislature has done by this act.
Section 1, art. 16, of the Constitution of Oklahoma directs the Legislature "to establish a Department of Highways" and empower it "to create improvement districts and provide for building and maintaining public roads."
The Constitution did not create, but directed the Legislature to create a Department of Highways. The Legislature possesses the power to create a Department of Highways in the absence of the constitutional provision. The function of the constitutional provision is a simple direction of duty. The Legislature has performed that duty. In performing it, the Legislature created "other (executive) offices provided by law," as authorized under section 1, art. 6, Const., and in view of the mandate of the Constitution that the officers so provided "shall perform such duties as may be * * * prescribed by law" (Idem) the Legislature by law prescribed the duties of the office by it created. Now the Legislature may have bestowed the duties of the Highway Department upon the Governor, but it did not. The Legislature might have declined to prescribe the duties of the new offices created or it might have provided the duties of the new offices created were to be such as the Governor saw fit to direct, thus to have made the Highway Department his alter ego, but it did not. What the Legislature did do was to create a department, as distinguished from a subordinate agency, as it was directed by the Constitution to do. It placed it upon a plane with other departments of the executive branch of state government; such as the Corporation Commission, the State Auditor, the Commissioner of Charities and Corrections, the Attorney General, the State Treasurer, the Secretary of State, and others by the Constitution created. It prescribed the duties of the office, and apparently it purposely omitted to require the Highway Commissioners to obey the mandates of the Governor. The Governor, by the act, was given no power to prescribe the duties to be performed by the department or its officers. But such officers are obligated only to "perform such duties as may be designated in this Constitution or prescribed by law." (Section 1, art. 6, Const.)
The act approved April 1, 1929, repealed chapter 71, S. L. 1927, and the latter act repealed only section 1, ch. 48, S. L. 1923-4. Thus leaving undisturbed the duties prescribed by law,not by the Governor, to be performed by the State Highway Commission. By that enactment the "Commission is hereby vested with the powers and duties necessary and proper to enable the Commission to fully and effectively carry out all of the objects of this act." The duties thereby described for the State Highway Commission are:
1. The supervision of highways and bridges constructed, improved, or maintained by the state.
2. To prescribe rules and regulations fixing duties of its employees and to prescribe the manner of co-operation between municipal subdivisions and itself.
3. Investigate and determine methods of road and bridge construction to the best interest of the state.
4. To aid in promoting highway improvement and maintenance throughout the state.
5. To let or supervise the letting of all contracts for construction or improvement of state highways or any contract for road and bridge construction or improvement where the work is being done in whole or in part with federal moneys.
Section 3 of the Act of 1924 authorized the Commission to employ an engineer, "who shall hold office at the pleasure of the Commission," *Page 149 and to appoint such assistant engineers and elerical help as may be by the Commission deemed necessary for the proper discharge of the duties of such office.
Section 4 directs the Commission to appoint a secretary, who shall serve at the pleasure of the Commission. The duties of the secretary are thereby prescribed and made to be under the direction of the Commission.
Section 5 authorizes the Commission to employ such other assistants and clerical help as may be in the judgment of the Commission necessary.
Section 9 of the act empowers the Commission on behalf of the state "to enter into any arrangements or contracts required by the duly constituted federal authorities, in order to secure the full co-operation of the government of the United States, and the benefits of all present and future federal allotments in aid of highway construction, reconstruction, improvement or maintenance."
This is a valid provision in view of section 8, art. 6, Constitution. For while it is made the duty of the Governor to "conduct in person or in such manner as may be prescribed by law all intercourse and business of the state with other states and with the United States, * * *" yet this is a provision by law for the manner of the conduct of the relation of state and federal government pertaining to intercourse and business relating to arrangements or contracts to secure the co-operation of the federal government and to secure allotments of federal aid for construction, reconstruction, improvement, and maintenance of highways.
In the conduct of such business with the federal government, the State Highway Commission functions as the agent of the Governor and is expected to expedite and consummate the state-federal intercourse and business. When the Governor acts in person in regard to state-federal intercourse and business pertaining to highways, he functions to execute the business authorized by law, and under the present law the discretion as to highway construction is vested in the Highway Department. That department determines when, where, and how highways within this state are to be built. So, in fact, in such relations, while the Governor in person may execute the contracts relating to such business or be a party to the intercourse With the federal government, the state's determination of the business is by law vested in the Highway Department, and so the Governor is simply an agent to expedite and consummate the business that arises under the law and by virtue of the Constitution. There is no specific provision, but a general one contained in section 2 of the Acts of 1923-24, c. 48, broad enough to authorize interstate relations concerning highway and bridge construction.
In these particulars only is the State Highway Commission subject to direction of the Governor, and that is not a confidential relation, but one concerning the expenditure of public funds.
A literal construction of the constitutional provision cited empowers the Governor either to conduct such business in the manner provided by law, or if that is not to his liking, he may transact such business in person.
There are many instances where other state officers are subject to the Governor's direction, nevertheless they are not at all times under his domination or within his control; i, e, the Attorney General may be directed to defend or prosecute the interest of the state. The Governor may require information from any office or department (and he has required it from all members of this court). It does not follow that a refusal to perform would give the Governor power to remove from office, but mandamus or impeachment, or removal as provided by law, is the remedy, and the provision of law as applied to the office under consideration is that the court shall exercise the power and ascertain the sufficiency of the grounds provided and relied upon.
"The Constitution has made the law and not the will of the executive the rule to which all its officers are bound to conform and to which they are amenable." Field v. People, supra.
Chapter 245, S. L. 1929, p. 312, amends section 10 of the Acts of 1923-24, and prescribes additional duties, no one of which concerns the Governor. This same act, chapter 245, S. L. 1929, amends section 1, ch. 82, S. L. 1927, so as to vest "sole discretion" in the Highway Commission, either to "drain or grade or hard-surface, or construct, or maintain any necessary roads, bridges, over-passes and under-passes, on any highway, street, or alley within incorporated limits of any city or town which highway, street, or alley is a continuation of the state highway system."
And provision is made:
"That such discretion shall in no event be controlled by any other authority."
Either:
"as to the manner, or time, or place."
Thus the Legislature evidenced its desire, *Page 150 intent, and purpose, so far as the building of state highways within certain municipal subdivisions are concerned, of a complete separation from dictation of "any other authority," and that phrase quoted includes the Governor. This is a valid and effective provision and serves to remove all responsibility in connection with such work of the department from the Chief Executive. In this regard the Governor has no power to direct or control the work of the Commission, nor in any other regard or connection except as specified in the Constitution and laws of this state.
"The Governor is responsible for the selection of competent and faithful officers. But he is under no further responsibility for the faithful discharge of their duties, but as he may be authorized by the Constitution or laws to direct and control them." Page, Second Auditor, v. Hardin, 47 Ky. 648.
In no regard can the Governor control the Highway Commissioner's act. He may inquire for purposes of recommendation to the Legislature, he may urge, but in event they refuse his request or direction his remedy is to act in person, and then he is limited to powers specifically granted by the Constitution and arising by virtue of the law. When and if he overrides in arrangements or contracts with the federal government, he is then dependent upon the law and the Legislature for the fulfillment of the obligations undertaken, and it must be remembered that the Legislature is possessed of the purse with which to meet obligations and of the power, with considerable liberality, to enact the law so as to vest powers and duties solely within any one of the many officers constituting the plural executive department of government. The law as written provides that sole responsibility for the construction and maintenance of highways and the expenditure of funds appropriated therefor is vested in the Highway Commissioners and not the Governor.
Thus the authority of the Governor under section 8 of art. 6, Constitution, to "cause the laws of the state to be faithfully executed" vests no power in the Governor to make the law, to construe it, or to remove a Highway Commissioner. Field v. People, 3 Ill. 79.
The last-quoted clause of the Constitution is a declaration of a general rule. It confers no specific power, not does it enjoin any specific duty. The enumeration of powers of a department of the government (unless to the contrary provided, as in section 36, art. 5, relating to the Legislature) operates as a limitation and restriction of a general grant. When we look to the divisions of power to see what powers are clearly granted, and when we bear in mind (1) that powers by implication can only be claimed as necessary to the exercise of one expressly granted, (2) and when we look to the structure of the executive branch of government with its parceled out executive power, with its duties defined in the Constitution and laws and not resting in the policies of the Chief Executive, and with its responsibilities for performance of duties centered upon the respective executive officers, and when we recognize the general policy of removal by impeachment or for cause based upon specified grounds, we conclude that power of removal of members of the Highway Commission is not essential to the exercise of any power conferred upon the Governor.
The prerogative of removal as applied to officers for whose duty the Governor is not responsible is not specifically conferred upon the Chief Executive and it cannot arise by implication, for neither the executive nor the judiciary can exercise any authority or power, except such as is clearly granted or such as arises by necessary implication of a grant.
Now, as applied to the King, the rule was different. When a question of prerogative concerning the King arose, recurrence was had to the charters of the people's rights and liberties, to ascertain whether the right in question had been surrendered by the King to the people; and if the grant could not be shown, the right was adjudged to the King, upon the principle that all rights of which he had not divested himself, by express grant to the people, came within his prerogative. But, upon the principle of our government that the sovereign power of the state resides in the people, and that only such powers as they have delegated to their functionaries can be exercised, where a claim of power is advanced by the executive, the question is, not whether the power in question has been granted to the people, but whether it has been granted to the executive, and if the grant cannot be shown, he has no title to the exercise of the power.
"It would be dangerous * * * to treat this clause (the Governor shall cause the laws of the state to be faithfully executed) as conferring any specific power which he would not otherwise possess. It is to be regarded as a comprehensive description of the duty of the executive to watch with vigilance over all the public interests." Walker, Am. Law, 103.
"The Governor is not to execute the laws himself, but to see them executed. This *Page 151 duty is performed by lending the aid and power of the executive arm to overcome resistance to the law. * * *
The executive is to see the laws executed, not as he may expound them, but as they may be expounded by those to whom that duty is entrusted." Field v. People, supra.
The federal and state courts adopt this view. It is sound. Any other view leads to despotism and counteracts "the whole scope and design of the Constitution, by substituting the changing and capricious will of one man for the fixed and known rules of the law." (Holder v. Anderson, 160 Ga. 433, 128 S.E. 184.)
Our construction of the law now before us is "that where no other power than that of appointment is given," such as contained in the Act of April 1, 1929 (and even that is modified by requiring the advice and consent of the Senate), "none else can be exercised, unless where the appointee is the mere agent, and bound to execute the will of the appointing power." The Highway Commissioners are not so bound. People v. McCullough, 254 Ill. 9, 98 N.E. 158; State ex rel. Standish v. Boucher, 3 N.D. 409, 21 L. R. A. 544: Peo. v. White, 334 Ill. 465, 166 N.E. 105; Witter v. Cook Co., 256 Ill. 616, 100 N.E. 148; Terr. v. Ashenfelter, 4 Johns. (N.M.) 85, 12 P. 879; Holder v. Anderson, 160 Ga. 453, 128 S.E. 184.
The power to appoint to office does not exist in the Governor as an implied executive function. State ex rel. Standish v. Boucher, supra. But under our Constitution and laws, where it was desired that such power be exercised, express provision for its exercise was made.
As to expressed power to appoint, note the one provision for original appointment, section 1, art. 14, Constitution, Bank Commissioner; and the provision for filling vacancies on the Supreme Court, section 3, art. 7, Idem., "until the next general election of state officers"; and section 15, art. 9, providing for the filling of vacancies in the office of the Corporation Commissioner, none of which provisions requires the consent of the Senate.
The only general power of appointment vested in the Governor is contained in section 13, art. 6, Constitution, which provides:
"When any office shall become vacant, he shall, unlessotherwise provided by law, appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected, appointed and qualified according to law."
In this regard our provisions are far different from those of the federal Constitution contained in section 2 of art. 2, federal Constitution, vesting the power in the President to nominate and by and with the consent of the Senate to appoint all superior officers of the United States. Except as stated, the Constitution of Oklahoma vests no power of appointment in the Governor, and consequently, otherwise than by the Constitution provided, the Legislature may select the proper appointing power, or it may provide for the office to be filled at popular election by the people.
Not so with Congress (Willoughby on the Constitution, vol. 2, sec. 695; U.S. v. Germaine, 99 U.S. 508, 25 L.Ed. 482; U.S. v. Smith, 124 U.S. 525, 31 L.Ed. 534), for "an officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department."
In the absence of constitutional provision the method of filling offices is to be determined by the Legislature. 46 C. J. 950; 22 R. C. L. 426; sec. 36, art. 5, Const.
So that the power to appoint to office is not per se an executive function. 12 C. J. 836. And the Legislature, where not inhibited by the Constitution, may vest the power of appointment at its discretion. Riley v. State, 43 Okla. 65,141 P. 264.
In the cited Oklahoma case it was held:
"Generally the power to select officers of the state is not an exclusive function of either the executive, legislative or judicial branches. Primarily, the power resides in the people, and they alone are authorized to say by what instrumentality the power may be exercised." Dunbar v. Cronin, 18 Ariz. 583, 164 P. 450; State ex rel. Standish v. Boucher, supra; State ex rel. v. Prater (N.D.) 189 N.W. 334; People v. Shawver (Wyo.) 222 P. 29; Peo. v. McCullough, 254 Ill. 9, 98 N.E. 156: Richardson v. Young, 122 Tenn. 471, 125 S.W. 664.
But the power of election or appointment to office is a political power, not inherently legislative, executive, or judicial, but which may be vested with equal propriety in either of them, for "all political power is inherent in the people." Section 1, art. 2, Bill of Rights, Const. of Oklahoma.
The Legislature represents the whole power and authority of the people, except when they have withheld or limited such power, or have conferred it upon some other department. People v. Freeman, 80 Cal. 233, 13 Am. St. Rep. 122; Trav. Ins. Co. v. Oswego, 59 Fed. 58; Cox v. State, *Page 152 72 Ark. 94, 105 Am. St. Rep. 17; Elliott v. McCrea, 23 Idaho, 524, 130 P. 785.
Since the appointive power is not per se in the Governor as an executive function, and since the Legislature, in an office created by it, may withhold the appointive power from the Governor, it is as logical and more reasonable that the removal power likewise may be withheld from the executive, at least where he is not responsible for lack of performance of the duties of the office nor charged with the obligation of outlining duties for such officers. The power to remove for cause contemplates that some authority will hear and determine accusation against the incumbent charged and render if established a condemnation far-reaching in its effect, whereas the power to appoint merely contemplates a choice or selection based upon fitness to discharge the duties of office. State v. Rhame (S.C.) 75 S.E. 881, Ann. Cas. 1914B, 524; Markey v. Schunk, 152 Iowa, 508, 132 N.W. 883; 46 C. J. 984.
It is our expressed view that the appointive power (and correlated removal power) is not an executive function, generally, granted by the terms of our Constitution. Nor is it an executive power, generally, incident to any specific power granted the Chief Executive. It is a sovereign power — the right to choose a leader.
With society capable of self-government, its source is the people. By basic law, whether Constitution or charter, usually this power to appoint officers is delegated. As applied to the states, it is generally possessed and exercised by the Legislature or assembly consisting of representatives of the people. Such was the custom in Rhode Island for years after its entry into the Union. Frequently even after entry into the Union the provision was that the judges were chosen by the Assembly. In the absence of inhibition, the Legislature may again delegate the appointive power to a proper agency; e. g., S. L. 1931, p. 24, ch. 21 [O. S. 1931, secs. 3789-3791 providing for the appointment of law clerks by Justices of the Supreme Court. Frequently ill-advised delegations of the power occur; e. g., S. L. 1931, p. 265, ch. 66 [O. S. 1931, sec. 1645] providing for appointment by district judge of a member of the board of equalization who is an ex officio member of the excise board. His duties pertain to administration of the general government. He is an executive officer. He possesses no characteristics of a judicial officer. We use the words "ill-advised" advisedly. We do not hold the act of delegation unconstitutional. The reason for the use of the words expressing our view is that patronage should be a thing foreign to courts. The courts must perform the most delicate of duties; its token is the scales of Justice — they are not to be balanced by patronage. The judiciary is physically the weakest of the departments of government — it is possessed of neither the purse nor the sword. The only voice it knows is that of law. There is no provision in the act, supra, for the removal of the officer. Can it be that the power to appoint carries with it the power to discharge? If this appointee is removable by the ipse dixit of the judge, then he is the judge's alter ego and is expected to conceive the judge's executive policy (whereas fundamentally the judge cannot have an executive policy). Moreover, the appointee being the judge's alter ego, and having conceived the judge's alien judicial views, when an issue concerning them is judicially before the court, the judge will be expected to nurture and sustain the same, thus to debauch himself as a judge. We repeat such is an ill-advised delegation of appointive power.
Nevertheless recent legislative and executive history (for this bill was sponsored and signed by the present Governor) shows that the people of our state are not concerned so much with the manner of appointment as with the exercise of power and discharge of the duty of office. In re Impeachment of J. C. Walton, Governor; In re Impeachment of Henry S. Johnston, Governor.
In foreign lands, based on lack of ability for self-government or a desire to suppress repercussions always present in manifestations of public clamor incident to elections, or economy in public expenditures or selfishness and glory of those in control, the selection of officers is often left to the vagaries of heredity rather than a popular vote.
From those so selected in the past emanates the theory of divine right to rule, to further suppress self-expression of the multitudes upon whom the state is builded. But our patriotic forefathers put aside such theories and discarded these foundation stones in our social structure, adopting the principle: Governments derive "their just powers from the consent of the governed," which is inclusive of the right of the governed to choose the leader or leaders or to provide, as they may see fit, for the selection of all officialdom. This is the appointive power — it is a sovereign power, neither executive, legislative, nor judicial, but inclusive of all the attributes of political power.
Ours is a government of laws and not *Page 153 of men. Such was the predominating idea cast in the construction of our governments both state and federal, for:
"No man was to be so high above the law that he could not be reached by judicial process. If this was not true to all alike, the Executive would then be at liberty to exercise his duties in any manner he might see fit, possibly, and more likely, to his own selfish gain and he would not be held accountable, as the Constitution would afford him this protection." The Appointing and Removal Power of the President (U.S. Gov. Ptg. Office [1929] p. 7).
John C. Calhoun stated that executive patronage "is but a necessary evil; that its tendency where it is not effectually checked and regulated is to debase and corrupt the community," and that unless checked "it is a certain indication of the near approach of irresponsible and despotic power." Likewise he said that too great an executive power being vested in a single individual is destructive to a sound government — which observation was heeded by the assemblers of our Constitution, who selected the plural executive idea for submission to our people, who were pleased to adopt it under the slogan of "Let the People Rule."
Were the construction otherwise, as Calhoun said in 1835, and:
"Were a premium offered for the best means * * * to destroy the love of country and to substitute a spirit of subservience and man worship; to encourage vice and discourage virtue, and, in a word to prepare for the subversion of liberty and establishment of despotism, no scheme more perfect could be devised." Idem, p. 54.
Mr. Clay rallied to the call of Calhoun with the view that the adverse idea was:
"A revival of the institutions of feudal times filling the land with barons of feudation."
Mr. Webster exactly analyzed executive power and inquired whether it "can be supposed" that the written Constitution conferred it in the lump." He sought its boundaries and its limitations. "Did they mean executive power as known in England, or as known in France, or as known in Russia? Did they take it as defined by Montesquieu, by Burlamqui or by DeLolme?" The statesman answered his inquiry by pointing out that while the framers of the Constitution meant to confer executive power on the Chief Executive, yet they meant "to define and limit that power and to confer no more than they did thus define and limit."
The federal government with the singular executive doctrine, he said, intended the selection of one magistrate to be called a President, who shall hold executive authority, "but they mean further that he shall hold his authority according to the grants and limitations of the Constitution. They did not intend, certainly, a sweeping gift of prerogative. They did not intend to grant the President whatever might be construed or supposed or imagined to be executive power; and the proof that they meant no such thing is that immediately after using these general words they proceeded, specifically, to enumerate his several distinct and particular authorities; to fix and define them; to give the Senate an essential control over the exercise of some of them; and to leave others uncontrolled. By the executive power conferred on the President, the Constitution means no more than that portion which itself creates, and which it qualifies, limits and circumscribes."
We accept, adopt and approve the reasoning of Mr. Webster as applied to the executive power possessed by the Governor of the state of Oklahoma under the Constitution of this state.
As Mr. Justice Miller in Langford v. U.S., 101 U.S. 341, well said:
"The maxim, that the King can do no wrong, has no place in our system of constitutional law as applicable either to the government or to any of its officers."
See, also, Goltra v. Weeks, 271 U.S. 550; Lane v. Hoglund,244 U.S. 182.
In Federal and State Constitutions, by Stimson, p. 7, the passage of sovereignty from the King to Parliament, and the existence in America of sovereignty in the people themselves, is reviewed. The author points out that the great principle of separate powers was suggested by the practical working of things in England, but that it had never been formally embodied in the Constitution of any country except our own, and that it is based upon the principle that those who make the laws may not administer them, and and he who administers them may not judge them, "to the end that it be a government of laws and not of men."
He then says: "Lastly, with us the people are sovereign; not as in England, the Parliament; nor as in continental countries, the King, and this led logically to the invention and the functions of our Supreme Court. * * * But in England we had the history of the judgments by the courts, of the King's own acts, and those of his officers under his orders. 'What power the king hath, he hath but by law.' This English heritage, joined with the logic of our Constitution, led to the creation of our great tribunal. When a people has granted to *Page 154 its government only certain powers, it may not trust to the wisdom of that government to judge of its own oversteps. When it has parceled out those powers between Congress and executive, between federal government and state, neither branch, neither forum, may safely be entrusted to determine its own power or limit its own realm." This rule is applicable to the Governor of Oklahoma.
If this were permitted, the frailties of human nature would render it certain that the branch of government permitted so to do would enlarge its own powers and extend its own realm until all powers were centered on that branch, and the other branch of government would be entirely stripped of all its legitimate powers. The people of this state have, by their Constitution, said: "All political power is inherent in the people; and government is instituted for their protection, security and benefit and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it: Provided, such change be not repugnant to the Constitution of the United States." Section 1, art. 2, Constitution.
The people have adopted our Constitution and declared that it shall stand until we, the people, by amendment alter it. Beside the executive and legislative branches of government they have placed the judicial branch. All are bound alike by the Constitution. They are equally bound by valid laws enacted under the Constitution.
Therefore, the maxim, "The King can do no wrong," has no place in our system of constitutional law, and as applicable to the, government or any of its officers.
If the principle, as applied to governmental functions, that no wrong can be done applies anywhere in our system, it applies to the people acting together, and then only in the manner and mode established by basic law. For in the people, and in the people alone, rests the power to alter or change our Constitution.
"Where a case is tried on an agreed statement of facts, the appellate court is as competent to consider such facts and apply the law as the trial court. There being nothing to weigh as to the credibility of witnesses, the appellate court will determine the law on the facts agreed to, and may render such judgment as the trial court should have rendered." Consol. Steel Wire Co. v. Burnham. Hanna, Munger Co. (Aug. 24, 1899)8 Okla. 514, 58 P. 654.
In Goodwin v. Kraft (March 9, 1909) 23 Okla. 329, 101 P. 856, it was said:
"In a case triable in this court on review on an agreed statement of facts, this court, not being concerned with the credibility of witnesses or the weight of their testimony, will apply the law to the facts as a court of first instance."
We quote from the body of the opinion:
"In considering this case, let us first inquire as to what is our duty as an appellate court concerning it. We take it that the case is practically triable by us de novo; that, being before us on an agreed statement of facts, this court is not concerned with the credibility of witnesses or the weight of their testimony, but the facts being determined, 'we are as competent to apply the law to the facts found as was the trial court.' Con. Steel Wire Co. v. Burnham, Hanna, Munger Co.,8 Okla. 514, 58 P. 654. That being true, we will lose sight of the judgment of the lower court, and determine the questions involved as though we were a court of first instance."
See, also, Railroad Co. v. Butts, 7 Kan. 308; Brown v. Evans,15 Kan. 88.
"Some of the courts hold that a new trial cannot be granted in such case, but that the appellate court must enter the correct judgment (Martin v. Martin, 74 Ind. 207; Harrington v. Hilliard, 27 Mich. 271)." Consol. Steel Wire Co. v. Burnham, etc., supra.
By our decision the order sustaining plaintiff's demurrer to the cross-petition is reversed. Judgment is now rendered upon the pleadings and agreed statement of facts vesting title to the office and right of possession thereto in Lew H. Wentz, and Maude O. Thomas is restrained and prohibited from interfering with defendant's possession of the office, and the clerk of this court is directed to issue a special mandate to the court below to award the necessary writs whereby the judgment here rendered may be enforced. Section 801, C. O. S. 1921 [O. S. 1931, sec. 549]; Moore v. Calvert, 8 Okla. 358, 58, P. 627.