Bynum v. Strain

• Citation: 1923 OK 596,218 P. 883,95 Okla. 45
• Decision Date: 14 September 1923
• Docket Number: Case Number: 14570
• Parties: BYNUM v. STRAIN, Bank Com'r.
• Court: Supreme Court of Oklahoma

1923 OK 596

218 P. 883

95 Okla. 45

BYNUM v. STRAIN, Bank Com'r.

Case Number: 14570

Supreme Court of Oklahoma

Decided: September 14, 1923

Syllabus

¶0 1. Equity--Action--Petition--Dual Powers of Courts.

Under our Code procedure and system of Code pleading, the court is endowed with the dual powers of a court of equity and a court of law and redress for every remediable wrong may be had by a civil action upon the facts stated in a pleading called a petition. Sections 174 to 178, inclusive; sections 231, 263, 264 and 265 Comp. Stats. 1921.

2. Same.

Where a pleading is indorsed a "petition," as the statute provides, and contains a statement of facts as the statute requires, which show on their face and from their nature that plaintiff has wrongfully sustained a detriment, a wrong for which the law or equity provides redress, then from the nature of the facts stated, the court, vested as it is with the dual powers of a chancellor and a court of law, will determine and grant the proper relief.

3. States--Appointive Officers -- Validity of Removal by Governor--Pleadings--Jurisdiction.

Where the petition of a party in interest states specifically and with sufficient certainty that he is the duly qualified and acting appointee under valid appointment from the Governor to an appointive position in an executive department of state, and that by executive order he has been wrongfully removed from such position and that such purported order of removal is without authority of law and is void, and that he has unlawfully sustained a detriment by reason of such void and unlawful order of removal, he has stated sufficient facts to give the court jurisdiction to determine whether or not the acts complained of were without authority of law.

And by such acts it is not an improper exercise of jurisdiction for the trial court to determine the validity of the acts complained of, though determination of same may have the effect of determining the legality of title to office.

4. Constitutional Law--Separate Departments of State Government.

Article 4 of the Constitution creates the governing powers of our state, consisting of the legislative, executive, and judicial, and provides: "And except as provided in this Constitution, the legislative, executive, and judicial departments of government shall be separate and distinct and neither shall exercise the powers properly belonging to either of the others."

5. Same -- Interference with Executive Powers by Judiciary.

In the absence of express authority of law so to do, the judiciary will not interfere with the exercise of executive powers, nor with the chief executive's sense of duties and responsibilities pertaining to the functioning of the executive department.

6. Banks and Banking--State Banking Department--Removal of Appointees by Governor--Statutes.

Neither the Banking Department nor the Bank Commissioner was created by the Constitution, but section 1, art. 14, of the Constitution authorizes and directs the Legislature to create the Banking Department to be under the control of the Bank Commissioner, appointed by the Governor. And the Legislature of 1907-8, by H. B. 11a and H. B. 333 and H. B. 615, formally created the Banking Department established the depositors guaranty fund, and formally authorized the governor to appoint a Bank Commissioner. S. B. 231, S.L. 1913, which is section 4172, Comp. Stats. 1921, provides that the Bank Commissioner and members of the Banking Board "shall be subject to removal by the Governor for cause"; it provides that the Governor shall exercise the power of removal, that the Governor shall determine the cause for removal, that due consideration shall be given by him to certain authorized recommendations in determining the cause for removal, and whether he shall exercise his authorized power of removal.

7. Constitutional Law--Executive Powers --Interference by Judiciary.

In the absence of express power conferred upon them to do so, the courts are without jurisdiction to interfere with, or to control an executive officer in the exercise of any power or the performance of any duty of an executive or administrative character, in which the Constitution and statutes contemplate the exercise of executive discretion. See 12 C. J., sec. 393, page 894.

8. Same--Removal of Officers "for Cause" --Executive Discretion.

Although a statute authorizing a removal by the Governor or other executive officer for cause contemplates an investigation by such officer of the grounds of complaint, and the formation of a judgment by him, it does not constitute an encroachment on the judiciary, since the judgment and discretion to be exercised is of an executive and not of a judicial nature. 12 C. J. 899.

9. Appeal and Error -- Reversal--Insufficiency of Petition.

In order to state a cause of action within contemplation of our Code, the petition should not only contain a statement of the wrongs complained of, but must state wrongs for which the law provides relief, and though the acts complained of may be sufficient to give the trial court jurisdiction to determine their legality, yet if it be determined by this court that the trial court erred in its judgment as to whether such acts were lawful or unlawful, it would follow that the petition failed to state a cause of action, and the judgment of the trial court should be reversed.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by Joe H. Strain, acting Bank Commissioner, against E. T. Bynum for injunction. Judgment for plaintiff, and defendant brings error. Reversed, with directions.

Stuart, Sharp & Cruce, Geo. F. Short, Atty. Gen., John Barry, and N.W. McKenzie, for plaintiff in error.

Robt, Burns, Elmer L. Fulton, and Keaton, Wells & Johnston, for defendant in error.

HARRISON, J.

¶1 This was a suit by Joe H. Strain, acting Bank Commissioner of the state, to enjoin E. T. Bynum from interfering with the affairs of his office.

¶2 The cause of action was primarily based upon the following alleged facts, to wit: That plaintiff, Joe H. Strain, was, on the date named, the duly qualified and acting Bank Commissioner of the state, under regular appointment of the Governor; that while thus acting, the Governor, by executive order, attempted to remove him from office, and on or about the same date appointed defendant, E. T. Bynum, to said office; that said purported order of removal and said purported appointment of Bynum were without authority of law and were both void; that defendant Bynum, claiming a legal right to do so under said void appointment, was threatening to take possession and charge of said office and its affairs, and would do so unless enjoined from so doing. He asks that Bynum be enjoined and for other relief.

¶3 Bynum demurred to the petition for failure to state a cause of action and for failure to state grounds for the remedy sought. The demurrer was overruled and injunction granted, and the cause is here upon two propositions, to wit: (1) That this being a suit for injunction, but primarily involving title to office, it is not the proper proceeding, and therefore the petition fails to state a cause of action. (2) That the Governor having legal power to do the things complained of, plaintiff has no legal grounds for complaint, and for this reason has stated no cause of action.

¶4 As to the first proposition, it is true, as has been held by this court, and generally so held by courts of other jurisdictions, that neither injunction nor mandamus is the proper remedy for trying title to office, holding the proper procedure to be by proceeding in quo warranto. Ewing v. Turner, 2 Okla. 94, 35 P. 951; Cameron v. Parker, 2 Okla. 277, 38 P. 14; Howe v. Dunlap, 12 Okla. 467, 72 P. 365; State ex rel. Love v. Smith, 43 Okla. 231, 142 P. 408, 53 L. R. A. (N. S.) 832, and authorities cited in note.

¶5 This is true, however, not because the petition may be drawn in the ordinary form of a bill for mandamus or injunction, nor because the action may be designated by either name, nor because the prayer be for one or the other remedy, but for the very simple and fundamental reason that title to office is purely a legal question, a title created by statute and determined by statute, hence the chancery powers of a court are not called upon and will not be exercised, cannot be properly exercised, until, as a court of law, it has first determined the legal right.

¶6 The claim for relief being based upon an undetermined legal right, equity will not respond until the legal right is first determined. Upon these underlying principles of procedure, the courts have held that the legality of title to office cannot be determined by a proceeding in equity; legal rights are not determined by chancery powers.

¶7 It must be borne in mind, however, that under our Code the court is endowed with the dual powers of a court of equity and a court of law, and that redress for every remediable wrong may be had by a civil action upon the facts stated in a pleading called a "petition". Sections 174 to 178, inc., Comp. Stats. 1921; also sections 231, 263, 264, and 265, Id.; also St. L. &. S. F. Ry. Co. v. Yount, 30 Okla. 371, 120 P. 627: West v. Madansky, 80 Okla. 161, 194 P. 439; Smith v. Gardner, 37 Okla. 183, 131 P. 538; Owens et al. v. Purdy et al., 90 Okla. 256, 217 P. 425; Security Oational Bank v. Nellie R. Geck, decided July 31, 1923 [rehearing pending]. So, where a pleading is called a "petition", as the statute provide, and contains a statement of facts, as the statute provides, which show on their face and from their nature that plaintiff has wrongfully sustained a detriment, a wrong for which either law or equity will grant redress, then from the nature of the facts stated, the court, vested as it is with the dual power of a chancellor and court of law, will determine and grant the proper relief. But the detriment or wrong complained of must be one for which redress is provided either in law or equity. If from the nature of...