# Phelps v. Childers > Supreme Court of Oklahoma · February 11, 1939 · 184 Okla. 421 URL: https://www.frixlaw.com/law-library/cases/3803259 ## Case - **Full name:** PHELPS Et Al. v. CHILDERS, State Auditor, Et Al. - **Court:** Supreme Court of Oklahoma - **Decided:** February 11, 1939 - **Citations:** 184 Okla. 421; 89 P.2d 782; 1939 OK 83; 1939 Okla. LEXIS 77 - **Precedential status:** Published - **Opinion:** Addendum - **Judges:** Cargill, Lackey, Linebaugh, Lucas, Stevens, Wilhite, Woodall, Yancey - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3803259 ## Opinion text This is an action in mandamus presented to this court on appeal from a decision of the district court of Tulsa county denying the writ. "This plaintiff (plaintiff in error in this court) is by profession a school teacher. Prior to the time the case was tried in September, 1937, she had taught 15 years, 12 of which had been in school district No. 19 of Tulsa county, which included within its territorial limits the city of Sand Springs. "In March of 1937, while she was teaching the school year of 1936-1937, but prior to the completion thereof, she was formally notified of action by the board of education of district No. 19, whereby she had been selected as one of the teachers of the district for the ensuing school year of 1937-1938. However, no action of a similar character was taken by the board subsequent to the commencement of the fiscal year on July 1, 1937, but, on the contrary, she was notified in August, 1937, that her services would not be required. "Plaintiff thereupon commenced this action in mandamus to compel the board of education of school district No. 19 to classify and reinstate her as a teacher in said district. "As we understand the briefs in this case, it is conceded that the board of education had no authority to enter into a valid contract employing a teacher for the school year of 1937-1938, prior to the commencement of the fiscal year on July 1, 1937, and that the plaintiff's hope of prevailing in this action rests solely upon the provisions of article 16, chapter 34, S. L. 1936-37 (Senate Bill No. 139), known as the Teachers Tenure Law, which was passed with an emergency clause incorporated and approved on May 3, 1937. "The act is calculated to afford a measure of security to teachers employed by school districts situated in the sections of the state to which it is applicable. It provides for the classification of teachers in accordance with their past experience, employment, and contemplates that they cannot be discharged or replaced without cause. "The defendants urge, among other contentions, that article 16, chapter 34, S. L. 1936-37, supra, is in violation of section 46, article 5, of the Oklahoma Constitution, prohibiting local or special laws 'regulating the management of public schools,' and section 59, article 5, of the Oklahoma Constitution, providing that laws of a general nature shall have uniform operation throughout the state, and that where a general law can be made applicable no special law shall be enacted. "The position taken by the defendants is based upon the limited application of the law as indicated by chapter 34, art. 16, sec. 1, S. L. 1937, as follows: " 'In all counties in the state having a city therein of over one hundred thousand (100,000) population according to the last preceding regular decennial federal census, there is hereby established a legal procedure for the proper selection in the employment of teachers in the public schools of the several districts within said counties and the conditions under which they may be discharged or demoted.' "By reason of the foregoing provisions the law is placed in operation only in those school districts situated in Oklahoma and Tulsa counties, to the exclusion of districts situated in all other portions of the state. "It is not essential, in order that a law be general in its operation as distinguished from local or special, that it be universal in its application and operate the same in every section of the state and upon all persons, individuals or corporations alike. On the contrary, the Legislature may classify for *Page 435 legislative purposes, but a classification so adopted must be neither arbitrary nor capricious and must bear a reasonable relation to the object to be accomplished. Key v. Donnell, 107 Okla. 157 , 231 P. 546 . When a classification is attempted, its reasonableness is tested by the rule announced by this court in School District No. 85, Kay County, v. School District No. 71, Kay County, 135 Okla. 270 , 276 P. 186 , where we said in paragraph 4 of the syllabus: " 'Local or special laws are all those that rest on a false or deficient classification. Their vice is that they do not embrace all the class that they naturally embrace. They create preference and establish inequality. They apply to persons, things, and places possessed of certain qualities or situations and exclude from their effect other persons, things, or places which are not dissimilar in this respect.' "We are here confronted with an act applicable to school districts situated in only two counties of this state and those two counties are selected to the exclusion of others upon the basis of the existence therein of cities containing more than 100,000 population. The capricious nature of the classification adopted and its effect in making the law 'apply to persons, things, and places possessed of certain qualities and exclude other persons, things or places not dissimilar', is singularly illustrated in the case at bar. Application of the law is here sought in connection with the management of the school system in the city of Sand Springs, a city of approximately 8,000 population. What peculiarity of that school district distinguishes it from the many other school districts of the state outside Tulsa and Oklahoma counties containing cities of similar size? "What substantial difference distinguishes the school system of Sand Springs from the school systems of the many other towns of Oklahoma of comparable area and population? No real distinction is pointed out by the plaintiff, nor can any be perceived by us. There is no connection between the population of the principal city in a county and the employment of teachers in the school districts of the county, especially in those districts lying outside the corporate limits of the principal city. The absence of distinctive features renders the law objectionable on constitutional considerations. In Burks v. Walker, 25 Okla. 353 , 109 P. 544 , we said: " 'There must be some distinctive characteristic upon which a different treatment may be reasonably founded, and that furnishes a practical and real basis for discrimination.' "In Key v. Donnell, supra, it was stated that: " 'When the Legislature attempts to legislate upon any subject and makes classification by reference to population, that classification must be legitimate and bear some reasonable relation to the subject matter and must not be an arbitrary or capricious classification and used as a subterfuge for the purpose of passing a special law under the form of a general law.' "And in Roberts v. Ledgerwood, 134 Okla. 152 , 272 P. 448 , our language was particularly appropriate to the case now before us. We said: " 'As to the two counties affected, there is no distinctive characteristic upon which a different treatment as to them may be reasonably founded, neither is there a characteristic shown which furnishes a practical and real basis for discrimination against the other counties of the state. The classification, therefore, becomes arbitrary and without relation to the subject matter, and fails to show that the two counties with reference to the subject matter are in a different position than the other counties in the state. Since this is true, the act becomes local and cannot be upheld as a general law.' "See, also, Thompson v. Stanley, 183 Okla. 445 , 83 P.2d 386 . "Upon consideration of the foregoing authorities, we are of the opinion, and hold, that article 16, chapter 34, S. L. 1936-37, is unconstitutional. "On the question of whether the legislative aim intended by this act could be accomplished by a general act, as well as other questions presented in the briefs, we express no opinion. "The decision of the trial court is affirmed. "OSBORN, C. J., BAYLESS, V. C. J., and WELCH, CORN, GIBSON, HURST, and DANNER, JJ., concur. RILEY, J., absent." The principles laid down in the above case appear to me to be in point with the case at bar. Each act grants a privilege to a special class. In the above case teachers in certain counties were given certain legal rights which the other teachers in other counties did not enjoy. In the case at bar three members of the Supreme Court are given certain rights which the other members of the same class were not permitted to enjoy. This decision is logical, correct without question and in no way attempts to circumvent the constitutional provision. In the face of this decision and the authority cited therein, House Bill No. 239 is and should be held unconstitutional. There is no provision in House Bill No. 239 for an appropriation to provide payment for the service imposed. By no stretch of the imagination may one construe an intent on the part of the Legislature to provide said payment. This act therefore is in direct *Page 436 conflict with section 55 of article 5 of our Constitution, which provides: "No money shall ever be paid out of the treasury of this state, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum." In Riley v. Carter, 165) Okla. 262, at page 272, 25 P.2d 666 , at page 676 of 25 P.2d, the learned Justice said: "It cannot be denied that, had the Legislature attempted to increase the salary of relator during his term of office, section 10, article 23, would have effectually prevented the payment of such an increase at the suit of any taxpayer without the necessity of supplemental legislation. If the provision is self-executing as to an unconstitutional increase of compensation, can a similar status be denied it as to the proposed unconstitutional decrease?" Having heretofore concluded that Act 239 was intended to equalize the salary of all nine Justices, this paragraph just quoted should settle the question involved herein. It is not my policy to approve an act which by common sense convinces me was intended as a subterfuge. The provisions of the Constitution of Oklahoma shall not be circumvented. The facts in this case are well known. The Legislature's intent and purpose is well known. I shall not join in any subterfuge to equalize the compensation. In the case at bar, there was no office created. The Legislature just simply attempted to confer a duty on three members of the Supreme Court. This net does not appoint an officer, does not create an office. It merely attempts to confer an additional duty. I am unable to agree in the conclusions of the reasoning of the majority of the court in this case, so dissent therefrom. It has always been said that most laws were founded on reason and common sense. I remember in my college days I had a very wise professor who said to us: "That good laws are founded on common sense and reason, so when you find something that has neither rhyme nor reason, it is wise to begin looking for the 'bug under the chip'." We have here a case where all the facts and conditions are such that all reasonable men without hesitation will agree that the purpose and effect in the act here involved was to equalize the salary of all members of the Supreme Court. This purpose in itself was not an unreasonable or unlaudatory one, if the same could be done without violating our Constitution, the supreme law of the land. We do not impugn the morals or motive of the Legislature. This does not and should not enter into the questions here presented, and I say that all of the cases cited in the majority opinions on this question are without the point, and have no hearing on the real questions presented in this case. Therefore, in conclusion, I must dissent from majority opinion herein, and hold that the writ should be denied. LACKEY and WOODALL, Special Justices, concur in the conclusions reached in this dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3803259. Public record. Not legal advice.