STATE v. OAKES

STATE v. OAKES
1955 OK 61
281 P.2d 749
Case Number: 36778
Decided: 03/08/1955
Supreme Court of Oklahoma

STATE OF OKLAHOMA, EX REL. DON HAMPTON, COUNTY ATTORNEY, DELAWARE COUNTY, OKLAHOMA, PLAINTIFF,

v.

MRS. OLEN MAY OAKES, DEFENDANT.

Syllabus

¶0 1. Where an existing statute is amended to provide for a factual situation not previously provided for, it must be assumed that is was the intention of the Legislature that thereafter such amendment controls in cases where clearly applicable, in lieu of previously existing general statutes upon the same subject.

2. Section 3.1,

3. Where one currently holding the office of County Commissioner is re-elected for the next term but dies before the expiration of the current term and prior to the beginning of the new term to which he has been elected, the person appointed to serve the remainder of the current term is entitled to hold such office only until the expiration of the current term, or until one appointed to serve the following term qualifies.

[281 P.2d 750]

Original action in the nature of quo warranto by the State of Oklahoma, ex rel. Don Hampton, County Attorney of Delaware County, against Mrs. Olen May Oakes, for an order requiring her to vacate and surrender to Ed C. Ferguson the office of County Commissioner, District No. 3, Delaware County, Oklahoma. Ed C. Ferguson permitted to intervene as a defendant. Order granted as prayed for.

Don Hampton, County Atty., Delaware County, Jay, for plaintiff.

L. Keith Smith and Riley Q. Hunt, Jay, for intervenor.

Francis Stewart and Kelly Brown, Muskogee, for defendant.

HALLEY, J.

¶1 This is an original action filed in this Court by the State of Oklahoma ex rel. Don Hampton, County Attorney of Delaware County, Oklahoma, against Mrs. Olen May Oakes, in the nature of quo warranto to remove Mrs. Olen May Oakes as County Commissioner for District No. 3 of Delaware County for the term of office 1955-1957, beginning January 3, 1955. Ed C. Ferguson petitioned to be made a party defendant and such petition is granted.

¶2 The facts out of which the controversy arose are not disputed. Robert L. Oakes was the duly elected and acting County Commissioner for District No. 3 of Delaware County for the term of office 1953-1955. November 2, 1954, Mr. Oakes was reelected for the term of office 1955-1957, beginning January 3, 1955. He died on November 5, 1954, only three days after being elected for the two year term beginning January 3, 1955.

¶3 On November 10, 1954, acting governor, James E. Berry, appointed Mrs. Olen May Oakes to said office, "to fill the unexpired term of Robert L. Oakes, deceased." She qualified and entered upon the duties of the office.

¶4 After the beginning of the 1955-1957 term of office and on January 5, 1955, Governor Johnston Murray appointed Ed C. Ferguson to said office, "for a term effective upon your qualification and ending the first Monday in January, 1957."

¶5 Mr. Ferguson thereafter took and filed his oath of office and his duly approved bond, all in accordance with the applicable statutes.

¶6 It is alleged that Mrs. Oakes refused and continues to refuse to surrender the office here involved to Mr. Ferguson.

¶7 This Court has assumed original jurisdiction under Section 2, Article VII of the State Constitution and sections 1531 and 1532,

¶8 [281 P.2d 751] Plaintiff contends further that under section 3.1,

¶9 Section 3.1,

"When any person elected to a public office has died or failed to qualify and enter upon the duties of such office for any reason or cause at the time and in the manner provided by law, and for six months or more thereafter has not qualified and entered upon the duties of said office, such public office shall be deemed vacant and shall be filled by the officer or board authorized to fill such vacancy, provided, however, that any appointment made under the provisions of this section to fill an office of any person who has failed to qualify on account of military service shall be only for the period of enforced absence of said person, or until said person qualifies for said office. The person holding over in such office shall surrender the same to the person so appointed upon his qualifying for said office as provided by law. The provisions of this Act shall be retroactive as well as prospective in its operation. Laws 1945, p. 154, § 1."

¶10 We think the applicable portions of the foregoing statute are:

"When any person elected to a public office has died * * * such public office shall be deemed vacant and shall be filled by the officer or board authorized to fill such vacancy * * *. The person holding over in such office shall surrender the same to the person so appointed upon his qualifying for said office as provided by law. * * *"

¶11 The defendant points out that Robert L. Oakes was elected in November, 1954, to succeed himself, defeating Ed C. Ferguson, who now claims the office by virtue of his appointment by the Governor of Oklahoma. It is true that Ed C. Ferguson is not a person elected to succeed Robert L. Oakes, and could not qualify "as a successor elected." Defendant also claims that at the time of Mr. Ferguson's appointment, there was no vacancy in the office of County Commissioner for the 3rd District of Delaware County. Defendant claims that she was appointed under the provision of Section 15,

¶12 Defendant further says that the death of Mr. Oakes created but one vacancy in the office of County Commissioner and that this one vacancy was filled by the appointment of the defendant, even though that appointment expressly provided that it was to "* * * fill the unexpired term of Robert L. Oakes, deceased", being the 1953-1955 term ending January 3, 1955.

¶13 The plaintiff contends that the death of the incumbent for the 1953-1955 term created a vacancy for the remainder of that term, and that the death of the person elected for the 1955-1957 term created another distinct vacancy for the term beginning January 3, 1955. The defendant contends that there was only one vacancy beginning when Mrs. Oakes was appointed to fill the unexpired portion of the 1953-1955 term, and extending until the end of the term of which Mr. Oakes had been elected in November, 1954. Plaintiff claims that a second vacancy occurred by the death of Mr. Oakes.

¶14 Defendant cites the case of Wooten v. State ex rel. Butler, 204 Okl. 423,

¶15 The trial court found that no vacancy existed when the appointment was made and no authority existed in the appointing authority to make an appointment to fill a vacancy that did not exist. This Court affirmed the trial court's judgment and held that no vacancy could exist until the expiration of the time granted by law for qualification of the party elected. The only other point decided in the Wooten case was as to the right of a county attorney to prosecute in the name of the State an action to oust a party who has unlawfully usurped a county office. This decision is not applicable to the facts before us.

¶16 Both plaintiff and defendant cite the case of Allison v. Massey, 108 Okl. 140, 235 P. 192. However, section 3.1,

¶17 It is error to assert, as does the defendant here, that Section 131, subsection (C),

¶18 An examination of

¶19 In 82 C.J.S., Statutes, § 384, page 903, it is said:

"* * * where an amendatory act provides that an existing statute shall be amended to read as recited in the amendatory act, such portions of the existing law as are retained, either literally or substantially, are regarded as a continuation of the existing law, and not as a new enactment. * * *"

¶20 Furthermore, both section 3.1,

"All the different parts of the revision or code, particularly those parts which relate to the same subject, must be construed together with a view to harmonizing them, if possible, and giving effect to each. * * *"

¶21 Should it be held that section 131(C), supra, means that a county commissioner in office could hold office until a person is elected to succeed himself, then section 3.1,

"It is a cardinal rule in the construction of statutes that the intention of the Legislature, when ascertained, must govern, and that to ascertain the intent all the various provisions of legislative enactments upon the particular subject should be construed together and given effect as a whole.

"When it is apparent that a strict interpretation of a particular statute, construed alone, would defeat the intention of the Legislature as shown by other legislative enactments, which relate to the same subject, and which have been enacted in pursuance of, and according to a general purpose in accomplishing a particular result, such construction should not be adopted."

¶22 Section 15,

¶23 The defendant also cites State ex rel. McIntosh v. Perkins, 35 Okl. 317, 129 P. 730, and Whaley v. Cotton, 114 Okl. 274, 246 P. 629. Those cases like Allison v. Massey, supra, were decided prior to the enactment of section 3.1,

¶24 It was held that since the incumbent, Thomas, was not defeated he should hold office until a successor was elected and qualified. The syllabus in that case decides only that the method provided by

¶25 Section 3.1,

¶26 We are not inclined to consider the decisions of the courts of other states unless there should be a showing that the statutes in such states are similar to ours and enacted as ours have been.

¶27 Mrs. Olen May Oakes was expressly appointed to serve out the unexpired term of Mr. Oakes, and we think the plain provisions of section 3.1,

¶28 WILLIAMS, V.C.J., and CORN, BLACKBIRD and JACKSON, JJ., concur.

¶29 JOHNSON, C.J., and WELCH and DAVISON, JJ., dissent.