The Attorney General in his petition for rehearing on behalf of respondents urges that the former decision of the court is erroneous in six particulars.
Under the first assignment, he argues that the Constitution does not make an appropriation for the salaries of Justices of the Supreme Court for the reason that the fund out of which the salaries are to be paid is not designated, and cites in support the case of Menefee, State Treasurer, v. Askew, 25 Okla. 623,107 P. 159. The Supreme Court of this state in the case of Miller v. Childers, 107 Okla. 57, 238 P. 204, held as follows:
(Syllabus 3): "An act of the Legislature making an appropriation of state funds which is otherwise valid is not rendered void by the mere failure to recite therein the particular fund from which said moneys shall be paid, for, in such event, the contrary not appearing in the act itself by express terms or by implication, such moneys are payable out of the general fund of the state, unless payment from such fund is prohibited by the Constitution of the state."
Passing upon the necessity for the designation of a fund, in the body of the opinion the court said:
"The matter has not heretofore been expressly determined by this court, and is of so great public concern that we feel the question should, nevertheless, be determined here.
"Said section 55 of article 5, supra, requires an appropriation bill to meet five requirements, as follows, to wit: (a) Make an appropriation of money; (b) provide for its payment within 30 months; (c) specify the sum appropriated; (d) state the object to which said sum shall be applied; and (e) not require reference to any other law to fix the sum appropriated.
"Plaintiff in error cites, without quoting from the following decisions of this court, to wit: Menefee v. Askew,25 Okla. 623, 107 P. 159, 27 L. R. A. (N. S.) 537; Meyer v. Clift,31 Okla. 793, 113 P. 1042. Like counsel for plaintiff in error, we fail to find any expression therein upon the point under consideration and need not analyze the rules of law therein announced.
"In 36 Cyc. page 892, paragraph C, the author collects authorities on the point, and says that: 'Nor need the statute designate the fund out of which the money is drawn.' "
The court then cites in support of the rule announced cases from California, Colorado, and Nevada. Authorities are also collected in 59 C. J., page 245, note 43 (a), to the effect that it is not necessary in the absence of a constitutional provision that an appropriation act should name the fund from which the appropriation is payable.
At the time of the framing of the Constitution there was, of course, no fund or funds in existence, and the convention could not designate an existing fund out of which these salaries were to be paid. However, by section 45, article 5, of the Constitution:
"The Legislature shall pass such laws as are necessary for carrying into effect the provisions of this Constitution"
— and section 2, article 10:
"The Legislature shall provide by law for an annual tax sufficient, with other *Page 285 resources, to defray the estimated ordinary expenses of the state for each fiscal year"
— the convention did require the Legislature by positive command to raise the money necessary to meet these charges.
Respondents in their second proposition assert that there is no sound distinction between an office created by the Legislature at its option under the express authority of the Constitution and an office created at the option of the Legislature without such express constitutional authority, that is to say, no distinction can be made between the provisions of sections 15 and 16, art. 25 (Schedule), of the Constitution and section 17 of that article. This contention of the respondents is denied in the case of Bohart v. Anderson, 24 Okla. 82,103 P. 742. In that case the court said:
"Section 15 of the Schedule provides for the compensation of the Governor, etc. * * * Section 16 provides that, until changed by the Legislature, the salary of the Justices of the Supreme Court of the state shall be $4,000 per annum. It willthus be observed that salaries and compensation of all of thestate officers are provided for in the Constitution, with theexception of the Clerk of the Supreme Court, members of theBoard of Agriculture, and Bank Commissioner. It is to be noted that section 17, in effect, provides that such state officers as may be created, and all clerks and assistants (such officers, including the clerks and assistants, except the secretary of the Corporation Commission, would have to be created in the future or subsequent to that time), shall receive such compensation for their services as may be provided by law; and, of course, as such officers, clerks, and assistants, except the secretary of the Corporation Commission, had neither been created nor provided for, the term 'as may be provided by law' in that case would not only literally, but also from the context, inevitably mean in the future, or contemplate future action by the Legislature." (Emphasis ours.)
In that case the court further said with respect to the constitutional provision:
"These enactments, expressing the solemn purpose of the people of the territory. * * * were before the constitutional convention when it met. Hence it placed the compensation for the Clerk of the Supreme Court separate and apart from all of the balance of the judicial officials of the state government, providing, as we have seen, that he should receive such compensation as may be provided by law."
The distinction between these classes of offices is clearly and soundly made in that case, and we deem it a sufficient answer to respondents' second contention.
Respondents' third contention is but a restatement of their second proposition in a different form and is without greater merit.
Respondents in their fourth proposition contend that the decision is contrary to Menefee v. Askew, supra. The holding in this case was thoroughly analyzed in the original opinion filed herein, and respondents have advanced no new reasons to cause us to recede from our construction of the Menefee Case.
Under the fifth proposition respondents argue that section 56, article 5, of the Constitution contemplates the Legislature should provide in a general appropriation bill for the salaries of all officers of the state, and say this provision is meaningless if the establishment of an office and the fixing of the salary constitutes a continuing appropriation. The case of Menefee v. Askew, supra, urged by respondents upon other points, decides this identical question contrary to the contention advanced here. In that case it was held that an act creating an office, fixing the salary and providing for its payment, constituted an appropriation, the continuation of which was limited only by the two and one-half year provision in section 55, article 5, of the Constitution. The offices of Justices of the Supreme Court were created by the Constitution, section 3, article 7; their salaries were fixed by section 16, article 25 (Schedule), with authority given the Legislature to change the amount only, and with that authority limited by section 10, article 23. The same is an annual appropriation by operation of law. The Constitution requires by mandatory terms the payment of the salaries so fixed. Section 15, article 25, reads:
"Until otherwise provided by law, the officers of the stateshall receive annually as compensation. * * *"
And section 16 reads:
"The salary of the Justices of the Supreme Court shall be four thousand dollars per annum, each. * * * until changed by the Legislature." (Emphasis ours.)
On examination of the whole instrument it is clear that the constitutional convention intended that Justices of the Supreme Court should be paid a salary out of the state treasury and that such salary should be $4,000 per annum, each, until changed in amount by the Legislature. It is difficult to imagine more explicit language by which the convention might have expressed that intention. We have held in the original opinion that the constitutional time limit on appropriations does not apply to *Page 286 appropriations made by the Constitution itself. It is not reasonable that the convention, having commanded the payment of certain salaries to the Justices of the Supreme Court, should have limited the life of that command to two and one-half years. The rule that constitutional appropriations are not limited by the two and one-half year provision in section 55, article 5, in no way prevents the application of that limitation to legislative appropriations. The provision remains an effective barrier against the expenditure of legislative appropriations after the expiration of the time limit.
Respondents under their sixth proposition assert the provisions of the Constitution for an independent judiciary are applicable also to the executive and legislative branches of government. With this contention we have no quarrel, and the failure, if any, of the Legislature to make adequate appropriations for those departments is not now before this court for decision. With reference to the Criminal Court of Appeals, that court was not created by the Constitution but by legislative act under a special authority given in section 2, article 7. We are not passing upon the salary of any state officer except Justices of the Supreme Court. The court as now constituted is organized and has jurisdiction to determine that issue only. It is suggested by respondents that, because the Constitution vests authority in the Legislature to alter the number of Justices of the Supreme Court and to change the amounts of their salaries, the position of the Justices is not materially different from that of officers created by legislative act alone. The power of the Legislature in this connection is not plenary but limited. Under guise of an alteration in number, the Legislature cannot work the practical abolition of the court, nor can it reach the same result by the diminution of the salaries to nominal amounts. The Constitution contemplates the continuous existence of the court and the adequate compensation of its members as an independent and essential department of the state government and the authority given the Legislature in this connection is subservient to the main purposes of the Constitution.
The several arguments advanced by respondents consist largely in selecting particular phrases of the Constitution and attempting to give those phrases effect without regard to the remainder of the instrument or the express intent of the convention in adopting it. As pointed out in the opinion of the court, that method of construction of constitutions is neither the approved nor proper one. Bohart v. Anderson, supra.
The brief of W.A. Ledbetter, as amicus curiae, for a rehearing presents the proposition that Justices SWINDALL, CULLISON, and ANDREWS are disqualified to sit in this case. The theory advanced for such disqualification is that in the event the court had decided petitioner was entitled to receive a salary of $625 per month notwithstanding the legislative appropriation, and should have further decided that such salary was payable out of the appropriation made by the Legislature, then the fund created by that appropriation would by such payments be exhausted prior to expiration of the fiscal year and the Justices named above precluded from receiving their salaries out of that fund unless the Governor should issue deficiency certificates or the Legislature in a special session make a further appropriation.
"The interest which disqualifies a judge is a direct pecuniary interest or a direct property interest, or one which involves some individual right or privilege in the subject-matter of the litigation whereby a liability orpecuniary gain must occur on the event of the suit." 33 C. J. 992. (Emphasis ours.)
"The interest must be a direct, real, and certain interest in the subject-matter of the litigation; not merely indirect, or incidental, or remote, or contingent, or possible." 33 C. J. 994.
The amicus curiae relies, among others, upon the case of Tumey v. Ohio, 273 U.S. 510, 71 L.Ed. 749, of which the late Chief Justice Taft was the author. The diligence of the amicus curiae must have also discovered the later case of Chief Justice Taft entitled Dugan v. Ohio, 277 U.S. 61, 72 L.Ed. 784, the headnote of which reads as follows:
"A mayor of a city having a commission form of government in which his duties are merely judicial, and who receives a stated salary, is not disqualified to decide prosecutions for violation of the liquor laws in the municipality, although his salary is paid out of the fund to which the fines imposed by him contribute."
In the latter case the Chief Justice distinguishes between the rule in the Tumey Case, where the compensation of the judge was largely dependent upon fines imposed by him and in fact consisted of a certain part of those fines, and one where the officer's salary was fixed in amount. Other cases hold to the same effect.
"And where the salary of a judge is payable *Page 287 out of a fund arising from the imposition of fines, as is the case with the judges of some of the city courts in this state, his interest is too remote to disqualify him to sit in a cause which may involve the imposition of a fine to be thus appropriated. Re Guerrero, 69 Cal. 88." Ex parte Alabama State Bar Association, 92 Ala. 113, 8 So. 768, 12 L. R. A. 134.
The interest which disqualifies a judge has been defined as follows:
"It must be such a cause that a judgment rendered therein would necessarily and directly and substantially affect his personal rights." City of Oakland v. Oakland Water Front Co. (Cal.) 50 P. 268.
The appropriation attempted to be made by the Legislature is as follows:
Supreme Court Justices (9 at $6,000) $54,000.00
The right of the Justices named to receive their statutory salaries of $6,000 per annum is in no way involved in this action. Whatever decision is entered herein can in no way affect that right. The right of these Justices to be paid out of the state treasury the stated salaries provided for their offices by law can neither be diminished nor increased by the event of this action regardless of the effect of that judgment upon the fund provided for such payment. The ground proposed for their disqualifications rests upon the assumption that, out of several eventual decisions in this case, one certain judgment might have been rendered, that the effect of such a possible judgment, if rendered, would be to diminish the fund out of which those Justices' salaries would then be payable, if the executive and legislative departments thereafter failed to replenish that fund. Under Mr. Ledbetter's theory, members of the Supreme Court would be disqualified to pass upon the validity of an act of the Legislature to raise revenue for state purposes for the reason that their salaries would be payable out of the fund so raised. Such a view is wholly untenable. If it be conceded that the result contended for by the amicus curiae is possible, it is too clear to permit of dispute that it is also indirect, incidental, remote, and contingent.
"The liability of pecuniary account or relief to the judge must occur upon the event of the suit and not result remotely, in the future from the general operation of law upon the status fixed by the decision." 12 Am. Eng. Encyc. Law, 45.
In matters indirectly involving the diminution of their own salaries, the highest authority has held that the judges are not disqualified. In the case of Evans v. Gore, 253 U.S. 245, 64 L.Ed. 887, the Supreme Court of the United States, in passing upon the constitutionality of an act of Congress subjecting the salaries of federal judges to an income tax, held that, although the decision would, in effect, determine whether or not the Justices of that court would be required to pay the tax, the jurisdiction of the cause would not be declined or renounced and the court would preceed to hear and determine the controversy, saying that that conclusion was supported by precedents reaching back many years. The courts of last resort of other states have similarly refused to disqualify themselves in such cases. State ex rel. Wickham v. Nygaard, 159 Wis. 396, 150 N.W. 513, Ann. Cas. 1017A, 1065; Long v. Watts (N.C.) 110 S.E. 765, 22 A. L. R. 277. Certainly, such matters involving a diminution of compensation of the Justices, and not by way of possibilities or contingencies, present much stronger and more persuasive grounds for disqualification than the theory of the petitioner. It does not seem possible that these cases and the rule there announced have escaped the search of the learned attorney appearing amicus curiae. This matter may be concluded with a quotation from the opinion of Mr. Justice Van Devanter in the case of Brooker v. Fidelity Trust Co., 263 U.S. 413, 68 L.Ed. 362:
"A further matter calls for brief notice. The bill charges that the judgment of affirmance by the Supreme Court of the state is void because one of the judges participating therein had an interest in the case which worked his disqualification. The case related to the duties and obligations of a corporation holding property under a conventional trust. The facts set forth to show the disqualification are as follows: Three or four years theretofore a citizen of the state had executed a will wherein he designated the judge as one of the executors and trustees under the will. The testator died about the time the case was submitted to the court and the will was admitted to probate a day or two before or after the judgment of affirmance. The judge became an executor and trustee under the designation in the will. When the will was executed, and up to the time of his death, the testator owned many shares of stock in corporations holding property under trusts like that in question. The stock was to pass and did pass to the executors and trustees for administration and disposal under the will. The judge's relation or prospective relation to that estate and to the stocks belonging to it is the sole basis of the charge that he had a disqualifying interest in the case. We think the facts set forth and relied upon neither support nor tend to support *Page 288 the charge; and we experience difficulty in reconciling its presence in the bill with the care and good faith which should attend the preparation of such a pleading."
There appear no causes for recusation true in fact or sufficient in law, and the Justices named should not withdraw.
" 'A judge ought not to withdraw upon a mere suggestion unless the cause of recusation is true in fact andsufficient in law; because the office of judge is one necessary for the administration of justice, and from which a judgeshould not be permitted to withdraw without sufficientgrounds.' (Emphasis ours.)" Conkling v. Crosby, (Ariz.) 239 P. 511.
The suggestion of the amicus curiae of the disqualification of Justices SWINDALL, CULLISON, and ANDREWS is without merit.
The petition of respondents for a rehearing is denied.
SWINDALL, Special Chief Justice, BIGGERS, Special Vice Chief Justice, CULLISON and ANDREWS, Justices, and CHASE and BAILEY, Special Justices, concur.
ROBINSON and CHESNUT, Special Justices, concur in that portion of the supplemental opinion holding that Justices CULLISON, SWINDALL, and ANDREWS are not disqualified to participate in said cause, and dissent from that portion of said opinion holding that there is a constitutional appropriation to pay salaries of Justices of the Supreme Court.