The principal question for decision in this consolidated cause is the constitutionality of H.B. 953 of the Twenty-Sixth Legislature, S.L. 1957, p. 109. This act, which bears an emergency clause, became law on May 21, 1957. It provides in substance that the county attorney, county judge and sheriff of each county of the state having a population of not less than 20,000 nor more than 20,400 as shown by the last preceding federal decennial census, and an assessed valuation of at least $15,-000,000.00 shall receive, in addition to their regular annual salaries fixed by general law, a specified monthly stipend from the court fund of the county for the performance of certain non-germane duties imposed in the act.
By his opinion of October 21, 1957, the Attorney General separately considered the constitutionality of H.B. 953 (along with 98 similar acts passed by the 1957 Legislature) and declared it to be “an invalid local and special law.” Its provisions have been carried neither into the official 1957 Cumulative Supplement to Oklahoma Statutes 1951 nor into the Oklahoma Statutes 1961 (adopted Jan. 29, 1963 by the enactment of 75 O.S.Supp. 1963, § 164). In the tables contained in Volume 3 of the Oklahoma Statutes 1961 the act under consideration is identified (at p. 1032) by a citation to the 1957 Session Laws and by note “Loe. & Spec.” (local and special). The appendix to Title 19 of the Oklahoma Statutes Annotated, entitled “Local and Special Acts”, contains the title of H.B. 953 (at p. 588) which is followed by a citation to the 1957 Session Laws and the note “This act held invalid. Op.Atty.Gen., Oct. 21, 1957.”.
The court takes judicial notice that at the time of the enactment of H.B. 953, only Jackson County met the narrow standards prescribed by its provisions. That count, according to the 1950 federal decennial census (which last preceded the passage of H.B. 953) had a population of 20,082; its assessed valuation for that year was $15,485,757.00.
For the purpose of deciding the principal issue herein we will assume that if the bill under consideration is free from constitutional infirmity Mayes County came within its purview when the 1960 federal decennial census became effective. According to that census Mayes County had a population of 20,073; its assessed valuation for 1960 was in excess of $15,000,000.00.
The provisions of Art. 5, § 59, Okl. Const., command that all “[l]aws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.” In order to be general in its nature and to have uniform operation a law must operate equally upon all the subjects within the class for which it was enacted although it may apply only to a designated class. But if a statute operates upon a class, the classification must be reasonable and pertain to some peculiarity in the subject-matter calling for legislation. It cannot be capricious or arbitrary. As between the persons and places
included
within the class upon which the law operates and those
excluded
from it there must be some distinctive characteristic warranting a different treatment and affording a practical and real basis for discrimination. Burks v. Walker,
Where a legislative act excepts from the operation of the general laws of this state one or more counties without any fixed basis for such discrimination and no reason appears why all should not be subject to the same rule, it is violative of Art. 5, § 59, Okl.Const. Hudgins v. Foster,
While counties and cities may, for legislative purposes, properly be classified on the basis of population, or population coupled with some other factor, such as assessed valuation, the classification must not be arbitrary but founded upon real and substantial distinctions, bear some rational relation to the subject matter and be uniform and general in its application. Haas v. Holloman, supra,
327 P.2d
p. 656; 82 C.J.S. Statutes § 191, p. 309. An arbitrary or capricious classification is regarded as a subterfuge for the purpose of passing a special act under the guise of a general law. Key v. Donnell,
It appears unnecessary for us to delve here into the question of whether the bill under consideration was processed as a general law or was introduced and passed as a special act in compliance with the publication requirements of Art. 5, § 32. That question is irrelevant here. While Art. 5, § 32 requires the legislature to publish notice in a specified manner before the intended introduction of a special or local act, it
does not authorise
the enactment of such laws upon subjects expressly prohibited by Art. 5, § 46. Sec. 32 simply provides a procedure to be followed in considering and passing local or special acts on subjects falling outside the prohibitory scope of § 46. The enactment of special or local acts expressly prohibited by § 46 is not to be deemed validated by compliance with the publication requirements of § 32. Chickasha Cotton Oil Co. v. Lamb & Tyner, 28 Ok. 275,
The provisions of the act under consideration impose upon the affected officials duties which do not stand imposed on like officials in other counties of the state. By its terms the county attorney is required to “prepare and file all legal papers and pleadings, and to present evidence on behalf of the State * * * in proceedings for adjudication of delinquency * * * ”; the county judge is required “to supervise” all juveniles on parole or probation and all dependent children who are wards of the court; and the sheriff is given the duties of supervising all persons other than juveniles who are on parole or probation.
Art. 5, § 46, Okl.Const. prohibits, among other things, the enactment of special or local laws
prescribing the powers and duties of county officers,
“except as otherwise provided in this Constitution.” The last quoted phrase has been construed to exempt from the prohibitory scope of § 46 only “those specific cases in which local legislation” was authorized by some other provisions of the Constitution. Chickasha
*706
Cotton Oil Co. v. Lamb & Tyner, supra. We find nothing in our fundamental law which authorizes the legislature to impose upon an arbitrarily selected group of county officials duties which do not stand imposed upon like officials in other, more populous counties. Sparks et al. v. Board of Library Trustees of Carter County,
We perceive of no sound reason why the officials in counties coming within the purview of H.B. 953 should be singled out for the performance of special added duties and be entitled to a supplemental stipend from the local court fund, when like officials in counties having a population substantially the same or higher but falling into a different valuation bracket are not authorized to earn higher emoluments in that manner. It follows that the population and valuation classification prescribed in the bill under consideration is purely arbitrary in the sense that there appear to be no distinctive characteristics upon which varying treatment of officials in the affected counties may be founded, and H.B. 953 must be regarded as a local and special law violative of Art. 5, §§ 46 and 59, Okl. Const. Re Bucher, County Atty,
It is argued that certain “distinctive characteristics” of Mayes County “were developed in the course of the trial” which “clearly indicates the wisdom” of the act here under consideration. This seems to be without legal significance. Our inquiry is confined to, and cannot be extended beyond, that of measuring the basis of classification actually embodied in the bill itself (at the time of its enactment) by the permissible standards of our fundamental law. Roberts v. Ledgerwood, supra. Moreover, the showing of some unexpressed local conditions peculiar to Mayes County would tend only to negative legislative intent to enact a general law in obedience to the command of Art. 5, § 59. Elias v. City of Tulsa, supra, 408 P.2d p. 521.
This consolidated cause invokes our cognizance of two distinct proceedings. The first of these was instituted here as an original action by the State of Oklahoma on the relation of the Attorney General. Its object was to prohibit the District Court of Mayes County from enforcing a judgment declaring H.B. 953 constitutional and the officials coming within its purview entitled to the specified stipend from the court fund. The judgment of the district court was rendered in a mandamus proceeding brought by the affected county officials of Mayes County who sought an order directing payment of their salary claims from the court fund. The second proceeding which forms a part of this consolidated cause is an appeal subsequently instituted from the same judgment by the Attorney General in the name of the Court Clerk of Mayes County. In her capacity as statutory custodian of the court fund, the clerk was defendant in the mandamus proceeding below; she declined to prosecute an appeal after the Attorney General had given notice of his intention to so proceed.
Several motions to dismiss have been filed in this cause. In the earliest of these motions it was urged that the issues sought to be litigated were moot because the clerk, defendant in the mandamus proceeding, had complied with the district court’s judgment directing payment of the salary claims in suit. This motion was denied by order sheet entry containing full explanation of the court’s ruling and the authorities relied upon. No leave was granted to re-present the argument in the brief on the merits. We adhere to our former disposition and decline to consider it further. Embry v. Villines,
The second motion challenged the standing of the Attorney General to prosecute the instant cause before this court. This motion, which was denied “subject to further consideration on the merits” is re-argued in the answer brief.
The Attorney General appears here at the request of the Governor. By the provisions of Art. 6, § 8, Okl.Const., the Governor is charged with faithful execution of the laws. Among other things, the terms of 74 O.S.1961, § 18c command the Attorney General as the chief law officer of the State, to participate, at the request of the Governor, before any tribunal in any proceeding in which the State may be interested; and when he so acts, the law itself empowers him to assume control of the litigation, “if he deems it advisable and to the best interest of the State.”
The subject matter of this litigation is of legitimate interest to the State. The management, operation and liability of the court fund are matters within the peculiar province and control of the Legislature. The State has a legitimate interest in the distribution of that fund and the right to prevent, by intervention if necessary, the unlawful diversion of any money from it. Herndon, Judge v. Anderson,
The third motion seeks dismissal of this appeal as to one of the three county officials adjudged below to be entitled to a stipend from the court fund. It is submitted that this official has been dead longer than a year and no order of revivor has been entered within the period of one year from his demise. Movant overlooks, however, the provisions of 12 O.S.Supp. 1965 § 1081(b). Under its terms, if a party in whose favor a judgment is rendered dies after judgment, a motion to revive may be made by any party to the action “at any time before the judgment becomes dormant but it must be made before action is taken to enforce the judgment.” No dismissal is hence required and the motion is denied.
Lastly, it is argued that the appeal should be dismissed because the record contains neither a journal entry of judgment nor an order denying new trial. This contention is also without substantial merit.
*708 The instrument entitled “Findings of Fact and Conclusions of Law”, which stands incorporated into the record, is amply effective as a judgment in this cause. Signed fay the trial judge, it recites that the issues are found in favor of the plaintiffs who are entitled to the relief prayed. In the concluding sentence the court orders that a peremptory writ issue commanding the clerk to pay the claimed stipends.
While the order denying new trial did not initially appear in the record, this is not fatal. This court granted leave to incorporate it in a correction proceeding before the trial judge. The order was subsequently included in the record. Although counsel for the opposite parties did not have notice of the time correction proceedings were to be conducted below, this court afforded him ample opportunity to point out in what respect the order, as now incorporated, was objectionable. Since counsel has failed to respond, we assume that the order denying new trial speaks the truth. The correction proceeding was authorized (Oklahoma Turnpike Authority v. Kitchen, Old.,
Our disposition of the appeal in cause No. 40,865 operates to render moot the issues sought to be decided in the original action in cause No. 40,844.
The trial court’s judgment is reversed with directions to deny the petition for writ of mandamus.