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such expectancy of the survivor thereaftor constitutes & limitation upon the measure of recovery allowable under these sections of the statutes.
9. Where one of two beneficiaries under Sec. 4313 and 4314 Stat. 1893, if next of kin commences an action and dies, such action may, upon stipulation of parties and proper and timely order of court, be revived in the surviving beneficiary as administratrix of the estate of such deceased beneficiary.
10. A defect of parties is waived unless taken advantage of by special demurror or answer, as the case may require, under statutes of 1893, Sec. 3967, or Sec. 3969 Statutes 1893.
11. The father and mother should join in an action for damages for death of a minor son; but where the father alone sues, and after his death, the action is revived in the name of the mother as the father's administratrix, upon a duly signed and filed stipulation, and where a general demurrer to the petition is thereafter overruled, but no question of defect of parties is presented in the trial court, except in the form of an objection to evidence after the trial has begun the defect of the omission of the mother as a party plaintiff is waived.
ANTHONY PATE, Plaintiff in Error,
No. A-1740 STATE OF OKLAHOMA, Defendant in Error.
(Rendered August 16, 1913.) Error from District Court of Pontotoo County. Hon. T. D. McKeown trial Judge.
On the trial of a person charged with perjury, the State is required to show not only that the testimony given was false and corruptly given, but must also show that it was material to the issue joined in the cause on trial in which such testimony was given. When this is not done a judgment of conviction cannot be sustained.
Syllabus by the court.)
defendant in error salary upon any other bases than $800 per annum.
Defendant in error contends that after July 1, 1908, he was entitled to a salary based upon the population of the county as shown by the census taken by the county officers in June 1908 and for clerk hire, based upon the population as shown by the same census. For the difference between salary and clerk hire, based upon the population of the county as shown by the federal census of 1897, and what such salary and clerk hire would be based upon the census of 1908, he filed his olaim with the county oommissioners which was refused, from which an appeal was taken to the district court, resulting in a judgment in his favor.
The only question presented by this proceeding is whether in the payment of defendant in error's salary and clerk hire subsequent to July 1, 1908, until the expiration of his term, the board of county commissioners was controlled by the census of 1908, or by the special Federal census of 1907. All parties agree that the board of county commissioners acted correctly in allowing the salary on the basis of the special census of 1907 until the census had been taken by the state authorities in 1908. As before stated, it is apparent that $ 3028, supra could not be applied in Delaware county until the consus had been taken under the statute extended in force. We need not disuoss what authority the board of county commissioners had with respect to ascertaining the population of the county prior to the aot of April, 1908, making the special Federal census of 1907 temporarily the official census of the state; for, as just stated, the parties agree that the board of county commissioners pursued the correct course during that time. It is apparent that the Legislature did not intend that the act of April 8, 1908, should make the special Federal census a per: manent official census for the state, for the act begins with the expression: "Until the next Federal census, or until a census shall be taken under the laws of this state, the special census of Oklahoma * * shall be the of.
The Legislature must have had in mind the provision of the statute authorizing a census to be taken by the state in June, 1908, and contemplated that such a census would be taken; and it is clear from the statute that it was the legislative intent that upon the taking of such census, it should thereafter be the official census of the state and the special Federal cen. sus should no longer control. The original statute contemplates that the salaries of the various county officials including county treasurers, based upon population, shall be adjusted every two years. In the Territory of Oklahoma, the term of office of the county treasurer was for a period of two years; but the term of the first set of county officers under the state continued from the admission of the state until January, 1911, or for & pe. riod of a little over three years. If there had been a cen. sus taken under the Territorial laws in Delaware county in 1906, then the salary of defendant in error up to the end of the first fiscal year, to wit: July 1, 1908, would have been based upon the population as shown by that census; and for the remainder of the term, upon the pop ulation as shown by the census of 1908. Since the stat. ute could not be applied to the period from the induction of defendant in error into office until July 1, 1908, the Legislature intended by the act of April, 1908, to put at rest the method by which the population of counties for the purpose of fixing the salaries during that period should be fixed; but did not intend that it should control or form the method of ascertaining the population after the state census should be taken and returned.
It is urged by plaintiff in error that this construction will have the effect to change the salary of defendant in error during his term of office. $ 10, article 23 of the Constitution provides :
"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, unlegs by opera.
tion of Law enacted prior to such election or appoint. ment;
The foregoing provision of the Constitution prohibiting a change of salary of an officer during his term of of. fice, does not require that the salary of an officer shall be uniform throughout his term. It requiere only that there shall be no difference in his salary during the different parts of his term, except such as result from the operation of a law enacted prior to his election or appointment. A statute enacted before an officer is elected might provide that his compensation should oonsist of the fees of his office. Under such statute it is entirely probable that the fees of the first year of a two year torm would greatly exceed those of the second year, or vice versa; yet, such a difference in the salary of such respective years would not constitute a change in the salary of his office, in violation of the foregoing provision of the Constitution. So, in the instant oase, the officer's salary is made to depend upon the population of his county at biennial periods; and the fact that the census at one of the periods, occurring after his term began, exceeds the population as shown by the preceding consus and thereby operates to give the officer a greater compensation for the latter period of his term than for the first period does not constitute a change of salary by operation of any law enacted during his term, but is a difference in salary, resulting from the operation of a statute enacted before his term began. The same reasoning and conclusion apply to the amount to be allowed for clerk hire.
The judgment of the trial court is affirmed.
All the Justices concur, except Kane, J., and Loof. bourrow, J., not participating.
SUMMARIES of LAWS Relating to the Commitment and Care of the insane to the United States.
By John Koren.
50 Union Square, New York.
This is a well written and printed volume of 298 pages and contains the laws of each and every state in the Union, as well as that of the District of Columbia, concerning the care and treatment of the ingane.
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