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question, the plaintiffs contend: (1) That of patrons of the road, provide that the there was no law in force in the state, au- charge for transportation of passengers to be thorizing the submission of the initiative exacted shall not exceed the sum of 5 cents measure to a vote of the qualified electors; for continuous passage over the company's (2) that if there was a law authorizing such lines, and that tickets for the use of school election the election was void, because it children shall be furnished good for one was held at the same time other measures continuous passage, in quantities not less were being voted upon in said city, and than 20 rides, at the rate of 212 cents each, therefore was not a special election; and and children under the age of 5 years, when (3) that if the ordinance was legally enacted accompanied by parents or guardian, shall in the foregoing respects it was void, because be carried free, etc. Then follow sections it sought to confer a perpetual franchise up providing for the participating by the city on the defendant, in violation of section 5a, in the profits of the company, and the grant art. 18, of the Constitution, which prohibits of other powers and the reservation of other the granting, extension, or renewal of fran- privileges incident to the conduct of a street chises for a period longer than 25 years. railway corporation. We think it is quite None of these contentions can be sustained. apparent that it was the intention of the city They are all based upon the theory that it council, by the enactment of Ordinance No. was necessary to invoke section 5a, art. 18, 549, to grant to the defendant a franchise to of the Constitution, to procure the consent construct an electric street railway system of the city to construct and operate a street within the city, and also to preserve its rerailway system upon the streets of the city, serve power to regulate the defendant's use other than those specially mentioned in sec of the streets, and preserve to the people tion 1 of Ordinance No. 549,' which theory, using the public utility many valuable privto our mind, is untenable. Section 5a, su- ileges. pra, provides: "No municipal corporation To hold that it is not within the power of shall ever grant, extend, or renew a fran- a city to grant a street railway franchise in chise, without the approval of a majority of the manner here attempted, and that every the qualified electors residing within its cor- permission for the extension of its tracks onporate limits, who shall vote thereon at a to other streets or alleys amounts to a new general or special election; and the legis- franchise, or the extension or renewal of the lative body of any such corporation may sub- old, requiring submission to a popular vote mit any such matter for approval or disap- as upon an original grant, would hamper one proval to such electors at any general mu- of the ordinary function of municipal corponicipal election, or call a special election for ration, and the progress and usefulness of such purpose at any time upon thirty days' transportation corporations, by an unreasonanotice; and no franchise shall be granted, ble restriction, and tend to a multiplication extended, or renewed for a longer term than of petty franchises, from which a confusion twenty-five years."

of claims, with resultant burdensome litiga[4] We are of the opinion that the amend- tion, would be sure to arise, to the detriment ment to section 1 of Ordinance 549 was not of public interests. Thurston v. Huston et an attempt to grant, extend, or renew a al., 123 Iowa, 157, 98 N. W. 637; Wood et al. franchise, and hence does not fall within the v. City of Seattle et al., 23 Wash. 1, 62 Pac. purview of the foregoing section of the Con- 135, 52 L. R. A. 369; Cleveland Electric Railstitution. Ordinance No. 549, as its title way Company v. City of Cleveland (C. C.) states, was “An ordinance authorizing the 137 Fed. 111; Sims v. Street Railroad ComOklahoma Interurban Traction Company of pany, 37 Ohio St. 556; Blair v. City of ChiOklahoma City, its successors and assigns to cago et al., 201 U. S. 400, 26 Sup. Ct. 427, 50 construct and maintain an electric railway L. Ed. 801; Cleveland Elec. Ry. Co. v. City of system in the streets and alleys of Oklahoma Cleveland, 204 U. S. 116, 27 Sup. Ct. 202, 51 City.” In its entirety it constitutes a com- L. Ed. 399. If, then, as we conclude, the plete code, governing the construction and amendment to section 1 of Ordinance No. maintenance of an electric street railway 549 was not the grant, extension, or renewal system. After granting the right to use cer- of a franchise, but simply an exercise of the tain streets for that purpose, section 2 pro- power of the city to regulate the company's vides how wires shall be suspended from use of its streets reserved to the original the trolley poles; and that all the work and grant, then the provision of section 5a, art. improvements shall be constructed under the 18, of the Constitution, is not applicable. In supervision of the city engineer and public our opinion, that provision is applicable only improvements committee of the city council. to the grant of an original franchise, or to a Section 3 requires the company in the con- renewal or extension of the period for which struction of its railway system to comply a grant has been made, and does not apply with the grades established by the city for to a mere extension or enlargement of the faits streets. Section 4 prescribes the duty of cilities which the franchise holder employs the company when it traverses any streets in exercising the power originally granted. upon which pavements are constructed, etc. Thurston v. Huston et al., supra. Section 40 Sections 5, 6, 7, 8, and 9 provide a system of article 18 of the Constitution provides a of rules to insure the safety and convenience means of submitting such questions to a vote of the people, as follows: "When such peti-, out the consent of the owner, shall remain tion demands the enactment of an ordinance in such owner subject only to the use for or other legal act other than the grant, ex- which it is taken. In all cases of condemnatension, or renewal of a franchise, the chiet tion of private property for public or private executive officer shall present the same to the use, the determination of the character of legislative body of such corporation at its the use shall be a judicial question." Grantnext meeting, and unless the said petition ing, without deciding, that the construction shall be granted more than thirty days before of a street railway in the streets of a city imthe next election at which any city officers poses an additional burden or servitude upon are to be elected, the chief executive officer the street, it does not follow that the plainshall submit the said ordinance or act so pe- tiffs, under the circumstances of this case, titioned for to the qualified electors at said are entitled to have the injury inflicted by the election; and if a majority of said electors invasion of such right ascertained and comvoting thereon shall vote for the same, it pensated for before the street is occupied for shall thereupon become in full force and ef- street railway purposes. That, in effect, was fect." As the foregoing provision was not the view entertained by this court in Edfollowed in the present case, the initative prowards v. Thrash, 26 Okl. 472, 109 Pac. 832, ceedings were merely advisory, and amount 138 Am. St. Rep. 975. It is true that in the to no more than a formal, though quite un- Thrash Case the damages alleged were occanecessary, approval of the action of the city sioned by changing the grade of a street by council. Of course, it follows that if the municipal agencies, and the question as to amendment of section 1, Ordinance No. 549, whether the same rule ought to be extended did not operate to grant, extend, or renew the to cases where consequential damages are franchise formerly granted, the contention of occasioned, other than through municipal counsel that it had the effect of granting a agencies, was left open; but there is small perpetual franchise, in contravention of that difference in principle between the two part of section 5a, supra, which provides that cases, and the decision in the Thrash Case “no franchise shall be granted, extended, or leads logically to the conclusion reached renewed for a longer term than twenty-five herein. The following from the opinion of years," must fail.

Justice Williams, who delivered the opinion [5] One more question remains to be notic- for the court in the Thrash Case, is ened. Were the plaintiffs entitled to injunctive tirely applicable to the facts disclosed by this relief to restrain the defendant from using record, and correctly states the principle inthe streets upon which their property abut

volved: ted, until the resulting damages are ascer- “Whilst the first clause of section 24, art. tained and compensation therefor paid? 2, supra, provides that private property shall Counsel contend that this right is guaranteed not be taken or damaged without just comby section 24, art. 2, of the Constitution, which pensation, an accompanying clause in the provides: “Private property shall not be tak- same section provides that, until compensaen or damaged for public use without just tion shall be paid to the owner or into court compensation. Such compensation, irrespec- for the owner, the property of the owner tive of any benefit from any improvements shall not be disturbed or the proprietary proposed, shall be ascertained by a board of rights of the owner divested. Does this latcommissioners of not less than three freehold- ter clause require compensation to be paid to ers, in such manner as may be prescribed by the owner, or into court for the owner, where law.

The commissioners shall not be ap- the damages are merely consequential? The pointed by any judge or court without reason word 'disturb,' according to Mr. Webster, able notice having been served upon all par- means, 'to interrupt a settled state of,' and ties in interest. The commissioners shall be according to the same authority 'proprietary' selected from the regular jury list of names means 'belonging or pertaining to a proprieprepared and made as the Legislature shall tor, considered as property, owned,' and the provide. Any party aggrieved shall have the words 'the property shall not be disturbed or right of appeal, without bond, and trial by the proprietary rights of the owner divested' jury in a court of record. Until the compen- seem to mean possession thereof shall not be sation shall be paid to the owner, or into taken, nor his property taken, nor the title court for the owner, the property shall not thereof be divested, until compensation therebe disturbed, or the proprietary rights of the for has been first paid to the owner, or into owner divested. When possession is taken the court for the owner. This was the conof property condemned for any public use, trolling construction of the state of Missouri the owner shall be entitled to the immediate at the time of the adoption of this clause in receipt of the compensation awarded, without the Oklahoma Constitution, and, when there prejudice to the right of either party to pros- was no such provision in force in any other ecute further proceedings for the judicial de- state, where a contrary construction prevailtermination of the sufficiency or insufficiency ed, that of the highest court of Missouri of such compensation. The fee of land taken should be especially persuasive. All the courts by common carriers for right of way, with seem to hold that, under such constitutional provisions, consequential damages arising, 275, 109 Pac. 520, 30 L. R. A. (N. S.) 1021, from the change of the established grade may and other cases. be recovered by the abutting owner. See, al- The judgment of the lower court is affirm. so, section 1, art. 1, c. 10, Sess. Laws 1907- ed. All the Justices concur. 08, and section 443, Wilson's Rev. & Ann. St. 1903. The only difference seems to be as to whether same shall be ascertained in an em

(29 Okl. 693) inent domain proceeding, or in an action at BOARD OF COM'RS OF MUSKOGED law for damages. The majority of the courts

COUNTY V. HART, having passed on the question appear to hold (Supreme Court of Oklahoma. Nov. 14, 1911.) the latter. The first Legislature of the state after its erection passed an act entitled 'An

(Syllabus by the Court.) act amending section 28 of article 9 of chap- OFFICERS (8 100*)-DEPUTIES—"TERM OF OF

FICE"'-COMPENSATION, ter 17, of the Statutes of Oklahoma, 1893,

A deputy, appointed by an officer to hold and regulating the method of procedure in the during the pleasure of such principal, does not condemnation of private property for both hold for a term, within the meaning of section public and private use.' Sess. Laws 1907-08, 10, art. 23, of the Constitution of this state, art. 1, c. 20, pp. 258, 261. Neither the eminent prohibiting the change of the salary or emolu

ments of any public officer after his election or domain act as brought over from the territo- appointment, or during his "term of office," es ry of Oklahoma, nor as thus amended, pro- cept by operation of law, enacted prior to such vides for the assessment of consequential

election or appointment. damages in the case of public improvements Dig. § 100.*

[Ed. Note.-For other cases, see Officers, Dec. made by a municipality. This evident legis.

For other definitions, see Words and Phrases, lative construction of section 24 of article 2 vol. 8, pp. 6920, 6921.) accords with that placed on the similar provision of the Missouri Constitution by the

Error from Superior Court, Muskogee Supreme Court of the state. Consequential County; Farrar L. McCain, Judge. damages would be difficult to ascertain before

Action between the Board of Commissionthe improvements had been made. This is ers of Muskogee County and Charles E. one of the reasons given by many of the courts

Hart. From the judgment, the Board of as to why it was not intended by the Consti- Commissioners brings error. Affirmed. tution and statute makers that provisions, W. E. Disney, for plaintiff in error. providing for compensation first to be made Charles A. Moon, for defendant in error. for the taking or damaging of property by virtue of eminent domain proceedings, did WILLIAMS, J. This proceeding in error not include consequential damages, and we is to review the judgment of the trial court, agree with the Supreme Court of Missouri, in holding that section 16, c. 69, Session Laws Clemens v. Insurance Company, supra [184 1910, as amended by section 1, c. 56, Session Mo. 46, 82 S. W. 1, 67 L. R. A. 362, 105 Am. Laws 1911, entitled "An act amending secSt. Rep. 526), in holding that, where the prop-tion 16 of an act entitled 'An act relating erty of the citizen is not taken and his pro- to certain county and district officers,' chapprietary right not disturbed, but the damage ter 69, of Session Laws 1910, repealing to his property is purely consequential, he is all laws in conflict," wherein the compensa. not entitled to have same ascertained and tion of certain deputies was increased, appaid before the proposed public work is done, plied to deputies then in office who held, and is not entitled to have the work done in not for any specified time or defined term, pursuance of valid municipal and legislative and that it was not repugnant to section 10 authority enjoined; but his remedy is one at of article 23 of the Constitution, which is law for damages.”

in hæc verba: “Except wherein otherwise In addition to this, Justice Williams quoted provided in this Constitution, in no with approval from D. & S. F. Ry. Co. v. shall the salary or emoluments of any pubDomke et al., 11 Colo. 247, 17 Pac. 777; Mc- lic official be changed after his election or Mabon & Perrin v. St. Louis, Ark. & Tex. R. | appointment, or during his term of office, Co., 41 La. Ann. 827, 6 South. 640; Spencer v. unless by operation of law enacted prior to Point Pleasant & Ohio R. R. Co. et al., 23 W. such election or appointment; nor shall the Va. 406, in all of which the consequential term of any public official be extended bedamages were inflicted by public service cor- yond the period for which he was elected or porations.

appointed: Provided, That all officers within A question involving the right of these this state shall continue to perform the duplaintiffs to maintain this action has been ties of their offices until their successors raised and argued, but, as the result would shall be duly qualified." be the same, no matter what conclusion we Section 3, art. 12, of the Constitution of reached on the question of procedure, we South Dakota (1889) provides: “The Legiswill leave it open, except in so far as the lature shall never grant any extra compensame may be settled by the decisions of this sation to any public officer, employé, agent court in McKay v. City of Enid et al., 26 Okl. I or contractor after the services sball have For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep's Indexes

19

case

been rendered or the contract entered into, y term for which said officers were elected or nor authorize the payment, of any claims or appointed.” part thereof created against the state, un- In Gibbs v. Morgan, 39 N. J. Eq. 126, it is der any agreement or contract made with said: “By the act of 1874, entitled 'An act out express authority of law, and all such to regulate the salary of the clerk of the unauthorized agreements or contracts shall county of Camden' (P. L. of 1874, p. 280), be null and void; nor shall the compensa- | it was provided that the clerk of Camden tion of any public officer be increased or county shall receive from the county, in diminished during his term of office; Pro- lieu of fees, for his services as clerk of the vided, however, that the Legislature may criminal and civil courts of the county a make appropriations for expenditures in- salary of $4,000 per annum; his fees to go curred in suppressing or repelling invasion.” to the county. The act was to take effect

In Somers v. State, 5 S. D. 321, 58 N. W. at the expiration of the term of office of the 804, Id., 5 S. D. 585, 59 N. W. 963, it was then clerk. By the act of 1876, entitled 'An held: “A deputy, appointed by an officer to act concerning clerks of counties in this hold during the pleasure of such principal, state' (P. L. of 1876, p. 289), it was enacted does not hold for a 'term,' within the mean that the clerk of each of the counties of ing of section 3, art. 12, of the Constitution, this state might appoint an assistant in his prohibiting any change in the compensation office, to be known and denominated as his of any public officer 'during his term of 'deputy clerk,' and gave to such deputy powoffice.'

er, during the absence or inability of the Section 8, art. 14, of the Constitution of clerk, to exercise all his powers and perMissouri (1875) provides: “The compensation form all his duties. But it was thereby or fees of no state, county or municipal offi- provided, also, that ‘no additional compencer shall be increased during his term of sation shall be paid to the deputy by the office; nor shall the term of any office be county.' The before-mentioned act of 1882 extended for a longer period than that for [P. L. 1882, p. 195), which is entitled a supwhich such officer was elected or appointed." plement to the last-mentioned act, if yalid,

In State ex rel. Kane v. Johnson, Comp- in effect partially repeals the provision of troller (Mo.) 25 S. W. 853, section 1 of the the act of 1876, that deputy clerks shall resyllabus is as follows: "A municipal officer, ceive 'no additional compensation from the subject to removal at the pleasure of the county,' and gives to the deputy clerks of council, is not an officer, within Const, art. counties where the clerk is paid by annual 14, $ 8, prohibiting an increase in the salary salary a salary of $2,000 per annum from of any officer during his term of office.” In the county. It is an act giving a salary out the opinion it is said: “Counsel for the re- of the county treasury to a certain deputy lator concede in their brief that he is a pub-clerk or certain deputy clerks, as the case. lic officer, within the meaning of the general may be, and the only question to be condefinition of a public officer, and that he sidered is whether it is a special or local performs public duties, and offices and func- law. Deputy clerks are public officers, but tions of a public character; but they con- they have no term, in the sense in which tend that he is not an officer, within the the expression is used in the paragraph meaning of the section of the Constitution above quoted (referring to paragraph 11, suquoted. It will be observed that this sec- pra). They are employés of the county tion of the Constitution only embraces with clerks, and their employment is a matter of in its provisions officers who are elected or mere private contract. The law merely conappointed for some specific or definite time, stitutes them public officers, and gives them and that it has no application whatever to certain powers. It does not establish any the case in hand, when the relator's term particular period of service for them. That of office is not fixed by any law or ordinance, is left to private agreement. Since they have and when he simply holds at the pleasure no term, in the sense in which the word is of the appointing power. This is manifest used in the Constitution, it follows that the from the fact that it also provides that the constitutional prohibition, when applied to term of office shall not be extended for a legislation to create or increase their comlonger period than that for which such offi- pensation, is unqualified. It must be by gencer was elected or appointed. The relator eral law, and cannot be by local or special was not elected, nor was he appointed, for enactment." any definite time.” On a rehearing, the Section 9, art. 11, Constitution of Califorcourt adhered to its former decision. State nia (1879) provides: “The compensation of ex rel. Kane v. Johnson, 123 Mo. 43, 27 s. any county, city, town or municipal officer W. 339.

shall not be increased after his election or Article 4, section 7, par. 11, of the Consti- during his term of office; nor shall the term tution of New Jersey (1844) provides: “The of any such officer be extended beyond the Legislature shall not pass private, local or period for which he is elected or appointed.” special laws in any of the following enumer- In Tulare County V. May, 118 Cal. 303, ated cases; that is to say:

* Creat- 50 Pac. 427, it was held that said provision ing, increasing or decreasing the percentage did not apply to deputy county officers who or allow ince of public officers during the had no fixed term.

Henderson v. Board of Com’rs of Boulder, fer to use specific language, and cover the County (Colo.) 117 Pac. 997, construing sec- entire ground in specific detail, rather than in tion 30, art. 5, Constitution (1876) of Colorado, general terms, and it is not for us to deteris not in conflict with the foregoing au- mine which is preferable. Then, again, thorities; for there the statute, fixing the mark the language, "after his election or county judge's salary, provided that the appointment, or during his term of office." compensation for his clerk should be paid “During his term of office,” construed with by him out of his fixed salary.

what goes before, indicates that it was inThe deputy clerk here is without any tended that this provision applied to public "term," as the same is used in section 10, officials that had a term of office, and the art. 23, supra. It follows that that por- defendant in error has no term of office. He tion of the provision which prohibits the serves at the pleasure of his principal. change of the salary or emoluments of a We conclude that the judgment of the public officer during his term of office does lower court should be affirmed. All the not apply to the defendant in error.

Justices concur. The question further arises, Does that part which prohibits the changing of such salary or emoluments after his election or appoint

(29 Okl. 698) ment apply? Article 24 of the Constitution of

FORTUNE V. PARKS et al. Connecticut (1818), as adopted by amendment (Supreme Court of Oklahoma. Nov. 14, 1911.) in October, 1877, provides: “Neither the Gen

(Syllabus by the Court.) eral Assembly nor any county, city, borough, APPEAL AND ERBOR (8 612*)—TRANSCRIPT town, or school district shall have power to SUFFICIENCY. pay or grant any extra compensation to Same as that in Wade et al. v. Mitchell, any public officer, employé, agent or serv. 14 Okl. 168, 79 Pac. 95. ant, or increase the compensation of any

[Ed. Note.-For other cases, see Appeal and public officer or employé, to take effect dur- Error, Cent. Dig. 88 2694-2701; Dec. Dig. I

612.*] ing the continuance in office of any person whose salary migbt be increased thereby,

Error from District Court, Caddo County ; or increase the pay or compensation of any G. A. Brown, Judge. public contractor above the amount specified

Action between C. C. Fortune and E. W. in the contract."

Parks and others. From the judgment, ForThe Connecticut provision does not de- tune brings error. Dismissed. pend upon the public officers having a fixed C. H. Carswell, for plaintiff in error. A. term, and it includes deputies. The Okla- J. Morris, for defendants in error. homa provision prohibits the changing, elther increasing or decreasing, of the salary WILLIAMS, J. The plaintiff in error or emoluments of a public officer after his seeks to review the judgment of the lower election or appointment, or during his term court upon a transcript. The certificate of of office. If this provision is to be constru- the clerk is as follows: “I, Clyde C. Leech, ed to mean that after an officer has received clerk of the district court in and for Caddo his appointment or been elected his salary or county, Oklahoma, hereby certify the foreemoluments shall not be changed, either in- going to be true, complete and correct copy of creased or decreased, then why the necessity amended petition, amended answer, motion of adding the clause "or during his term of for judgment on pleadings, motion for new office?" It is a rule of construction that, if trial, J. E. on motion, motion for second trireasonably practical, effect is to be given to al, J. E. on motion, in cause #978. Parks the entire provision, and no part shall be nul. et al. v. Fortune, as the same appears on file lified. If this section be construed to mean and of record in said court. In testimony that after an officer has been elected or ap- whereof I have hereunto set my hand and pointed, and prior to the time that his term affixed the seal of said court this 4th day of begins, no change, either by increasing or Sept., 1909. Clyde C. Leech, Clerk, by Sally decreasing, shall be made in his salary or Sorenson, Deputy. (Seal.]" emoluments, and, further, after his term Counsel for defendants in error insist that, has begun, during such term no change shall where a transcript on appeal fails to show be made, either by increasing or decreasing affirmatively that it contains "a full, true such salary or emoluments, then effect is and correct transcript of the record,” the given to all of this provision. But it may appellate court will not review the alleged be urged that then the clause "or during errors; that it must appear from the cerhis term of office" was unnecessary, and that tificate of the clerk that it is a complete the clause "after his election or appoint- transcript. That was the holding of the Sument" would have covered, not only the preme Court of Oklahoma Territory in period prior to his being installed in office Wade et al. v. Mitchell, 14 Okl. 168, 79 Pac, and beginning his term, but also subsequent 95, following Whitney v. Harris, 21 Kan. 96; thereto to the end of this term. That may Eckert v. McBee, 25 Kan. 706; State v. be true; but some framers of provisions pre- | Ricker, 40 Kan. 14, 19 Pac. 357; Neiswender •For other cases see same topic and section NUMBER in Dec: Dig. de Am. Dig. Key No. Series & Rep'r Indexos

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