STATE v. BAILEY

STATE v. BAILEY
1956 OK 338
305 P.2d 548
Case Number: 37173
Decided: 12/26/1956
Supreme Court of Oklahoma

THE STATE OF OKLAHOMA, PLAINTIFF IN ERROR,
v.
CLAUDE W. BAILEY, DEFENDANT IN ERROR.

Syllabus by the Court.

¶0 1. Statutes are to be construed as having a prospective operation unless the purpose and intention of the Legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used. In case of doubt the doubt must be resolved against the retrospective effect.
2.

Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.

The State has appealed from a judgment sustaining a demurrer to, and dismissing, an accusation returned and filed by a Grand Jury, wherein it was sought to remove the defendant, Claude W. Bailey from the office of County Commissioner, for alleged offenses committed during a previous term of office and prior to the effective date of

J. Howard Edmondson, County Atty., Tulsa County, Donald D. Cameron, Asst. County Atty., Tulsa County, Tulsa, for plaintiff in error.

Frank Hickman, Tulsa, for defendant in error.

 
DAVISON, Justice.

¶1 This is an action, founded upon an accusation returned by a grand jury, wherein it is sought to remove the defendant, Claude W. Bailey, from his public office of County Commissioner of Tulsa County, Oklahoma. The parties will be referred to as "defendant" and as "State" as they appeared in the trial court.

¶2 The accusation was returned and filed on November 29, 1955, charging the defendant with alleged acts of malfeasance in office during his prior term of office as such county commissioner immediately preceding his current term of office which commenced on January 3, 1955, and to which he had been elected in 1954. The case comes here on appeal from an order of the district court sustaining a demurrer to, and dismissing, the accusation. The correctness of that judgment hinges upon the interpretation and validity of an act of the legislature,

 
"All elective officers in the State of Oklahoma,
including elective officers of the State and elective
officers in each County, City, Town or School
District of the State of Oklahoma, but excluding any
elective officers liable to impeachment, shall be
subject to removal from office in such manner and for
such causes as now provided by law, or as may be
provided by law passed subsequent to this Act, and
any such officer or officers may be removed or ousted
from office for any act or acts of commission or
omission or neglect which may be committed, done or
omitted during the term in which such ouster or
removal proceedings may be filed, and any such
officer or officers, may be removed or ousted from
office for any act or acts of commission, omission or
neglect committed, done or omitted during a previous
or preceding term in such office.

"The complaint, petition, accusation or proceeding
for removal or ouster from office may include
allegations or charges of any act or acts of
commission, omission or neglect which may be
committed, done or omitted during the term of office
in which such ouster or removal proceeding may be
filed, and may also include allegations or charges as
to any act or acts of commission, omission or neglect
committed, done or omitted during a previous or
preceding term in such office."

¶3 It was and is the position of defendant, concurred in and sustained by the trial court, that the above quoted statutes had no retrospective application and, if they did, they were ex post facto and in violation of Art. II, sec. 15 of the Oklahoma Constitution and of Art. I, sec. 10 of the United States Constitution. The position of the State is that "an entirely new right of action was created by the enactment of H.B. 1012, Title 25, Ch. 23, p. 200, S.L. of Oklahoma 1955,

¶4 This court held, in the case of Board of Com'rs of Kingfisher County v. Shutler, 139 Okl. 52, 281 P. 222, and the earlier case of State v. Blake, 138 Okl. 241, 280 P. 833, therein followed, that, prior to the enactment of sec. 1181.1 supra, "an officer cannot be removed from office under said section [

¶5 We need not include, herein, an academic discussion of the reasons for, and distinction between, the rule in some states that the cause of action may exist, although the remedy does not. Chandler v. Horne, 23 Ohio. App. 1, 154 N.E. 748, 750, and the rule in others that "It is not possible for one at the same time to have a cause of action and not to have the right to sue." Walters v. City of Ottawa, 240 Ill. 259, 263, 88 N.E. 651, 653.

¶6 In the case of Wilson v. Wilson, Sup., 45 N.Y.S.2d 733, 735, the generally accepted rules of law, applicable to the situation now before us, were quoted from the earlier case of Jacobus v. Colgate, 217 N.Y. 235, 111 N.E. 837, Ann.Cas. 1917E, 369, as follows:

"`The general rule is that statutes are to be
construed as prospective only. * * * It takes a clear
expression of the legislative purpose to justify a
retroactive application. * * Changes of procedure -
i.e., of the form of remedies - are said to
constitute an exception * * * but that exception does
not reach a case where before the statute there was
no remedy whatever. * * * To supply a remedy where
previously there was none of any kind is to create a
right of action.'"

¶7 Since shortly after statehood this court has followed rules of law, first adopted in the case of Good v. Keel, 29 Okl. 325, 116 P. 777, and therein stated as follows:

"It is a rule of statutory construction that all
statutes are to be construed as having a prospective
operation unless the purposes and intention of the
Legislature to give them a retrospective effect is
expressly declared, or is necessarily implied from
the language used. 36 Cyc. 1205. In every case of
doubt the doubt must be resolved against the
retrospective effect."

A reaffirmation of those rules is contained in the case of State ex rel. Allen v. Board of Education, 206 Okl. 699, 246 P.2d 368, and in numerous intervening cases.

¶8 More recently, the case of Phillips v. H.A. Marr Grocery Co., Okl., 295 P.2d 765, 768, dealt with the same proposition and with contentions similar to those herein urged. The following language was used in the opinion in that case,

"We do not agree that the statute in question is
purely procedural but on the contrary it deals with
substantive rights. It confers the right upon the
injured employees to obtain relief from the State
Industrial Commission of this State for injuries
sustained in another State, a right which they did
not have prior to the effective date of said Act."

¶9 To give the statutes here being considered, the interpretation contended for by the State would admittedly have the effect of conferring upon the state a right of action against the defendant, a right which it did not have prior to the effective date of the act. As was said in Swatek Construction Co. v. Williams, 177 Okl. 305, 58 P.2d 585, 587, "This would be to give the amendment a retrospective construction." Nothing in the act indicates that such was the intent of the Legislature.

¶10 It is not intended, by this opinion to infer that, if the controversial statutes were retroactive in effect, they would be constitutional. Having reached the conclusion we have, there is no reason to consider the constitutional question and we express no opinion thereon.

¶11 The judgment is affirmed.