Bowles v. State

• Citation: 1923 OK 226,215 P. 934,90 Okla. 199
• Decision Date: 01 May 1923
• Docket Number: Case Number: 13599
• Parties: BOWLES v. STATE.
• Court: Supreme Court of Oklahoma

1923 OK 226

215 P. 934

90 Okla. 199

BOWLES v. STATE.

Case Number: 13599

Supreme Court of Oklahoma

Decided: May 1, 1923

Syllabus

¶0 1. Grand Jury--Jurisdiction--Removal of Officers--Statutes.

Chapter 205, Session Laws 1917, is a cumulative statute, its purpose being to prescribe additional causes for removal from office, and actions thereunder shall be commenced in the name of the state, on relation of the Attorney General. Said act does not have the effect of depriving the grand jury of jurisdiction to present accusations charging any public officer, not subject to impeachment, with any of the causes for removal mentioned in section 5592, Rev. Laws 1910.

2. Municipal Corporations--Removal of Officers--"Willfulness" of Acts--Jury Question.

In an action to remove a city officer for habitual or willful neglect of duty or willful maladministration, the willfulness of the acts charged is a question for the jury.

Error from District Court. Bryan County; B. C. Logsdon, Judge.

Action by the State of Oklahoma against R. P. Bowles for removal from office. From a judgment of removal, defendant appeals. Affirmed.

Utterback & MacDonald, for plaintiff in error.

Victor C. Phillips, Co. Atty., Geo. F. Short, Atty. Gen., N.W. Gore, Asst. Atty. Gen., and Hayes & McIntosh, for defendant in error.

NICHOLSON, J.

¶1 This was an action by the state against R. P. Bowles, as defendant, seeking to remove the defendant from the office of mayor of the city of Durant, in Bryan county.

¶2 The prosecution was instituted after the defendant had been charged by accusation of the grand jury with various offenses. The accusation contained five counts, to each of which the defendant demurred, which demurrer was by the court overruled. At the conclusion of plaintiff's evidence, the court sustained the defendant's demurrer to the evidence as to counts Nos. 4 and 5, but overruled said demurrer as to counts Nos. 1, 2, and 3. The jury by its verdict found the defendant guilty as charged in count No. 2, and not guilty as charged in counts Nos. 1 and 3. Upon this verdict judgment was duly entered removing the defendant from office, and from this judgment he has appealed, and presents two propositions, the first being that the court erred in overruling his demurrer to the accusation. The portion of the accusation necessary to notice is as follows:

"* * * In the name and by the authority of the state of Oklahoma, do present, find, accuse and charge that in said county of Bryan and state of Oklahoma, one R. P. Bowles was during all of the time herein named, the duly elected, qualified and acting mayor of the city of Durant, county of Bryan, state of Oklahoma, and that said R. P. Bowles then and there being such mayor of the city of Durant, Bryan county, state of Oklahoma, and duly acting as such is guilty of habitual and willful neglect of duty, corruption in office and willful maladministration in office in the manner and form as follows:

"Count Number Two.

"And the grand jurors aforesaid, on their oath aforesaid do further present and find, accuse and charge that R. P. Bowles the duly elected, qualified and acting mayor of the city of Durant, Bryan county, state of Oklahoma, unlawfully, willfully and wrongfully fail, refuse and neglect to make out and file with the city clerk of the city of Durant, Bryan county, state of Okahoma, his monthly report giving in detail the amount of fines and costs assessed and collected by him as mayor of the city of Durant as required by law for the following months, to wit: For the months of May, June, July, August, September, October, November and December, 1921, and for the months of January and February, 1922, during all of which time the said R. P. Bowles was the duly elected, qualified and acting mayor of the city of Durant, and as such mayor it was incumbent upon the said R. P. Bowles to perform the duties of the police judge of the said city of Durant; all of which was contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma."

¶3 The demurrer to this count raised the question of the authority and jurisdiction of the grand jury to present the accusation, it being the contention of the defendant that he could only be proceeded against under the provisions of chapter 205, Session Laws 1917, generally known as "the Attorney General's Bill," which defines official misconduct within the meaning of that act as "any wrongful failure or neglect to diligently and faithfully perform any duty enjoined upon such officer by the laws of this state", and which act makes it the duty of the Attorney General to institute and prosecute proceedings to oust such offending officer from office.

¶4 It appears that the prosecution herein was instituted and conducted under sections 5592-5608, Rev. Laws 1910. Section 5592 provides that any officer, not subject to impeachment, elected or appointed to any state, county, township, city, town, or other office under the laws of the state may be removed from office for any of the causes therein named, the first of which is "habitual or willful neglect of duty," and the sixth being "willful maladministration."

¶5 Section 5593 provides that an accusation charging the officer with any of the causes for removal mentioned in the preceding section may be presented by the grand jury to the district court of the county in or for which the officer was elected or appointed; the remaining sections mentioned prescribing the procedure after the accusation is returned.

¶6 Therefore, the question for determination is, whether or not the causes for removal charged in the accusation fall within the provisions of section 5592, supra. If they do, then the grand jury had the power to present the accusation, and the prosecution could be properly maintained thereunder.

¶7 Section 662, Revised Laws 1910, referring to police courts in cities, provides:

"The police judge shall, within the first three days of each month, make out a list of all the cases heard or tried before him as police judge during the preceding month, giving in each case the name of the defendant, the fine imposed, if any, the amount of costs (showing the amount taxed in favor of each officer), the names of the defendants committed, the causes appealed to the district court, and the amount collected by him as fine and costs separately. Such judge shall verify such list and statement by affidavit, and file the same forthwith with the city clerk, who shall lay the same before the city council at

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