The opinion
WILLIAMS, Justice,
dissenting:
What is involved in this case is simply that the five officers named in the caption hereof obtained a writ of mandamus requiring the Board of County Commissioners of Muskogee County to give them a pay raise in the middle of the terms of office to which they, respectively, had been elected and Board appeals. I would reverse.
Our Oklahoma Constitution, Art. XXIII, Section 10 in pertinent part reads as follows, to-wit:
Except wherein otherwise provided in this Constitution, in no case shall the salary or emoluments of any public official be changed after his election or appointment, or during his term of office, unless by operation of law enacted prior to such election or appointment;
In the 1911 case of Board of Com’rs. of Muskogee County v. Hart, 29 Okl. 693, 695 , 119 P. 132, 134 , this Court, referring to the above provision of our Constitution stated that, “The Oklahoma provision prohibits the changing, either increasing or decreasing, of the salary or emoluments of a public officer after his election or appointment, or during his term of office. * * * ‘During his term of office’ construed with what goes before, indicates that it was intended that this provision applied to public officials that had a term of office * *
The Thirty-Sixth Oklahoma Legislature, Second Regular Session in 1978 enacted statutes giving sizeable salary increases in certain counties to certain county officers (listed in caption) effective for those taking office in January or July 1979 but not effective for those holding over until 1981. (Salary raises for such officers would be effective after the next election.) The salaries of certain employees of such officials being keyed percentage-wise to those of their officer-employers likewise are so affected. Such statutes as listed in the petition in error are 190 O.S.A. §§ 180.62, 180.63 and 180.64A.
Appellees, plaintiffs in the action in the trial court alleged entitlement to a writ of mandamus giving them the salary raise granted by the Legislature to other officers in the same class with themselves on the theory that they had had the responsibility to perform nongermane duties thrust upon them and that they had been deprived of Fourteenth Amendment (to U.S. Constitution) equal protection rights.
I would hold that appellees are not entitled to a salary raise on the theory of being required to perform duties not germane to the.ordinary functions of their offices for the reason that the device of granting salary raises along with the laying on them of such alleged additional nongermane duties has not occurred. Their complaint is that the Legislature did not raise their salaries, not that it did.
The trial court in judgment issuing writ sought by appellees, cited eight cases. *1340 Three of these and the statute are discussed in appellees’ brief. Most of these and other authorities are discussed in brief amicus curiae.
Phelps et al. v. Childers, State Auditor, 184 Okl. 421 , 89 P.2d 782, 785 (1939) cited by the trial court, appellees and amicus curiae was an action by three Justices of the Supreme Court of Oklahoma seeking a writ of mandamus requiring payment of claims for salary increases granted by the Legislature contemporaneously with the imposition on them of duties allegedly not constituting a part of the ordinary duties of the office of the Supreme Court, after their having filed a written acceptance of the terms of the Act with the Secretary of State.
There the special Court, quoting from the case of Love, Attorney General v. Baehr, 47 Cal. 364 , (also cited by the present trial court judgment) said:
The Legislature has no more power to compel the Attorney General to perform such service as a part of the duties of his office, than it has to compel the Superintendent of Public Instruction to take charge of the prison system.
* * * If, however, he has performed service which, under the Constitution, is wholly foreign to his office, and which is not and cannot become a part of his official duty as Attorney General, and if the Legislature has seen fit to compensate him for this unofficial service, there is no constitutional impediment to burden them from doing so.
The case of Finley, Probate Judge v. Territory ex rel. Keys, 12 Okl. 621 , 73 P. 273, 281 (1903) relied upon in trial judgment, held that the probate judge of Kiowa County was entitled to retain from fees and compensation earned by his office for handling town site matters only the maximum compensation allowed him by law in spite of the jurisdiction conferred on the office by Congress and the Oklahoma Territorial Legislature. Judgment against the Judge was reversed, however, because although he had pleaded entitlement to reimbursement for certain expenses incurred in performance of duty, a demurrer to his answer had been sustained and judgment prematurely entered.
In the case of Bond v. Phelps, 200 Okl. 70 , 191 P.2d 938 (1948) cited by the trial court, in appellees’ brief and by amicus curiae, held a legislative act requiring the three members of the Corporation Commission to file with the Secretary of State a certificate of their willingness to perform certain duties and then perform the same by preparing an annotated compilation of all the oil and gas laws of Oklahoma and the general orders, rules and regulations the Commission had adopted pursuant thereto etc. and file same with the State Library as a public record, and granting the Commissioners a $2500.00 per annum “extra-duties raise” did not violate Article XXIII, § 10 of the Constitution.
The case of Groesbeck, Governor v. Fuller, Auditor General, 216 Mich. 243 , 184 N.W. 870 (1921) relied on in lower court judgment, was a case wherein the Supreme Court of Michigan held that numerous duties placed on an administrative board composed of certain named officials pursuant to a statute giving them $2500 per year each in additional pay for performance of those duties did not violate their indicated constitutional provision.
The case of Moore v. Moore, 147 Va. 460 , 137 S.E. 488 (1927), also relied upon in rendition of trial court judgment, was an original proceeding wherein the Supreme Court of Virginia upheld validity of an act of their Legislature imposing additional duties on the state auditor and giving him additional pay for performance of such duties, as against claim of alleged unconstitutionality.
In Breeden v. Nigh, Oklahoma, 441 P.2d 981 (1968) cited in trial court judgment, the Lieutenant Governor was made Chairman of the Oklahoma Industrial Development and Park Commission, given duties related but different from those performed as nonvoting member of predecessor Commission and granted a specific salary for perform- *1341 anee of his new duties as Chairman held not to violate Art. VI Sec. 34 or Art. XXIII § 10 prohibitions against public officers’ compensation, salaries or emoluments being changed, or increased during term of office.
The case of Board of Co. Com’rs of Creek County v. Bruce, 51 Okl. 541 , 152 P. 125 (1915) cited in trial court judgment involved the matter of whether the County Clerk of Creek County should account for fees collected pursuant to applicable statute for the issuance of hunting licenses. The Clerk’s salary was set by statute. This Court held he should account for the fees in spite of the extra responsibility having been put on him to handle the licenses.
In 67 C.J.S. Officers § 227 — Additional or Extrinsic Duties p. 727, it is said:
Generally a person holding an office whose pay is fixed by law or regulation cannot be allowed to receive additional pay or compensation for performing additional duties, unless authorized by law. Thus, where the duties of an officer are increased by the addition of other duties germane to the office without provision for compensation, the officer must perform such duties without extra compensation because additional duties pertaining to the office have been assumed by him or imposed on him by the exigencies of the office. Services required of officers by law for which they are not specifically paid must be considered compensated by the fees allowed for other services.
On the other hand, an officer is not obliged, because his office is salaried, to perform all manner of public service without additional compensation. So, for services performed by request not part of the duties of his office, and which could have been as appropriately performed by any other person, he may recover a proper remuneration. In this connection, although services not required by the law cannot be classed as official duties, nevertheless, public policy requires that courts should not favor nice distinctions in order to declare certain acts of public officers extraofficial.
In a note to the above quotation from C.J.S. is cited our case of Broaddus v. Board of Co. Com’rs of Pawnee County, O. T., 16 Okl. 473, 479 , 88 P. 250 (1906) which involved the claim of pre-statehood Pawnee County register of deeds for additional pay for performance of additional duties by reason of inclusion of unorganized territory (Osage Reservation with its 5,300 citizens, but not including 2,045 Indians which added to the 13,520 population of Pawnee County made a population of 18,820 to be served. The statute authorized pay raises for certain other officials but not the register of deeds. Denial by the Board of County Commissioners of the requested raise affirmed by the territorial district court in turn was affirmed by the Supreme Court of Oklahoma Territory. The Court quoted from the case of United States v. King, 147 U.S. 676 , 13 S.Ct. 439 , 37 L.Ed. 328 as follows:
When a statute increases the duties of an officer by the addition of other duties germane to the office, he must perform them without extra compensation
Also cited in a note to the C.J.S. quotation was the case of Anderson v. Hinman, 138 Mont. 397 , 357 P.2d 895, 903 . It was a 1960 case wherein the Supreme Court of Montana determined the Clerk of that Court should account to the state for statutory fees collected for furnishing certified, authenticated copies of the Court’s legal opinions but need not charge statutory fees for furnishing unauthenticated, uncertified copies she voluntarily furnished. The Court further held the clerk and her living predecessors could retain monies they had received during the previous 75 years from West Publishing Co. at the rate of 25<f per page for unauthenticated, unverified copies of such opinion despite being salaried officers, the voluntary furnishing of such copies being services which could have been as appropriately performed by any other person.
The trial court findings of fact, conclusions of law and judgment recites a stipula *1342 tion of fact and lists respectively 18, 11, 8, 8 and 7 alleged non-germane duties of the appellees in the order listed in the caption and further characterizing the first two and fifth lists as “additional”. Counsel for appellant Board states many of these duties were respectively required either by 1974 or prior to the 1978 amendment of the subject statute. Amicus Curiae brief particularizes some said to have been enacted effective this year.
This bit of information in the view of this writer is immaterial in view of other matters treated in this expression of individually-entertained views.
Public officers have no claim for official services rendered except where, and to the extent that, compensation is provided by law. 67 C.J.S. Officers, § 219, Right to compensation, a. In General, Note 51 citing authorities from a U.S. Court and 18 different state courts.
By our State Constitution, subject to the reservation of certain powers in the people, “The Legislative authority of the State” is vested in the Oklahoma “Legislature.” (Art. V, § 1). “The authority of the Legislature” extends “to all rightful subjects of legislation * * * ” (Art. V, § 36). “The Legislature” must “pass such laws as are necessary for carrying into effect the provisions of” the “Constitution.” (Art. V, § 45).
In the 1912 opinion of this Court in the case of Ticer v. Holt, 35 Okl. 1 , 128 P. 493, 495 , we said:
An officer is not entitled to receive compensation from the state or county unless it is given to him by the Constitution or statute.
This Court there continued:
Where compensation is given to an officer by a constitutional or statutory provision, whether by salary or fees or commissions or otherwise, it is in full of all his official services, and he is not entitled to demand or receive any additional compensation from the public for any service within the line of his official duty, although his duties have been increased, or entirely new duties have been added since he assumed office, or, if his compensation consists of fees, although the service is one for which no fee is provided by law.
In Bennett v. State ex rel. Newer, 47 Okl. 503 , 150 P. 198, 199 , this Court said that salaries of county officers are, when not otherwise provided by law, to be fixed by the Legislature. See West Okla.Dig., Officers, Compensation and Fees, § 94, Right in general.
In Neumann v. Tax Commission of State of Oklahoma, Okl, 596 P.2d 530, 1979 , we recently said the “Determination of question of constitutionality of statute, even if in serious doubt, will be avoided if a construction is fairly possible otherwise.” Citing Crowell v. Benson, 285 U.S. 22 , 525 S.Ct. 285 , 76 L.Ed. 598, 619 .
In the 1973 opinion of this Court in the case of Ruble v. Redden, 517 P.2d 1124, 1126 , wherein was involved the question of whether a newspaper was published within Dewey County and was entitled to recognition as a publication authorized to publish legal notices under the applicable statute, we said:
Where there are two possible interpretations of a statute, one of which would render the statute unconstitutional, and another which would render the statute valid, the Court should adopt the construction which will uphold the statute.
Pyeatte v. Board of Regents of University of Oklahoma, 102 F.Supp. 407, 414, 416 , affirmed 342 U.S. 936 , 72 S.Ct. 567 , 96 L.Ed. 696 , involved the situation of plaintiff who owned a rooming house seeking to enjoin the University of Oklahoma from requiring students not housed in fraternity and sorority houses and a hall owned by a religious body to stay in housing facilities provided by university.
The Federal Court ruled that the regulation involved did not forbid complainant “to contract with any student. It merely creates a condition of affairs which renders the *1343 making of a related contract, lawful in itself, ineffective, and this is not fatal to its constitutionality.”
The court continued:
A regulation can violate [the Equal Protection Clause] only if the group subjected to it has been arbitrarily selected and defined.
In the case of Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79 , 31 S.Ct. 337, 340 , 55 L.Ed. 369 , certain rules were enumerated by which the equal protection contention is to be tested. These rules are as follows: ‘1. The equal-protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.’ (Emphasis added).
Lee Optical of Okla. v. Williamson, 120 F.Supp. 128 , affirmed in part, reversed in part 348 U.S. 483 , 75 S.Ct. 461 , 99 L.Ed. 563 , rehearing denied 349 U.S. 925 , 75 S.Ct. 657 , 99 L.Ed. 1256 was a case where an Oklahoma statute dealing with the regulation of visual care was upheld, as against claims of unconstitutionality. The Supreme Court held that no invidious discrimination, viola-tive of the equal protection clause of the Fourteenth Amendment, inhered in the statute’s exemption from regulation of sellers’ ready-to-wear glasses. At 348 U.S. 483, 488-489 , 75 S.Ct. 461, 464-465 , 99 L.Ed. 563 , 572, 573, the U.S. Supreme Court said:
For protection against abuses by legislatures the people must resort to the polls, not to the courts.
* * * * * *
The legislature may select one phase of one field and apply a remedy there, neglecting the others. * * * The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. We cannot say that that point has been reached here. For all this record shows, the ready-to-wear branch of this business may not loom large in Oklahoma or may present problems of regulation distinct from the other branch.
See West’s Oklahoma Digest, Constitutional Law, § 48, Presumptions and construction in favor of constitutionality, for a dozen pages of references to Federal and State authorities under 8 sub-heads of general effect that statutes generally should be upheld if not shown to be clearly and palpably in violation of fundamental law.
In City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 1117 , 184 N.W. 823 , 832 it is said:
There is no presumption against the validity of an act of the Legislature. On the contrary, all presumptions are in its favor, and a statute will not be held unconstitutional unless its contravention of constitutional guaranties is so clear, plain and palpable as to leave no reasonable doubt on the subject; and where the language is reasonably susceptible of different meanings, the courts will lean to that construction which is consistent with its validity.
Here there was no legislative enactment giving appellees a salary raise, of any character. Therefore they are not entitled to one.
I respectfully dissent.
I am authorized to state that LAVENDER, C. J., IRWIN, V. C. J., and OPALA, J., concur in the views expressed in the foregoing dissenting opinion.