Cameron v. Parker

• Decision Date: 08 September 1894
• Parties: CAMERON v. PARKER
• Court: Oklahoma Supreme Court

1894 OK 51

38 P. 14

2 Okla. 277

CAMERON v. PARKER

Supreme Court of Oklahoma

Decided: September 8, 1894

SYLLABUS

¶0 1. Mandamus will not lie to try the title to a public office. Ewing v. Turner (Okl.) 35 Pac.951.

2. It may be stated as a general rule in an action in mandamus that, where a relator shows a prima facie title to a public office, he is entitled to the aid of mandamus to obtain possession of the books, records, insignia, paraphernalia, and official belongings of such office; and, in granting the writ, the court will not go behind such showing, and try the title thereto. Ewing v. Turner (Okl.) 35 P. 951.

3. So long as the governor's action in removing an officer is within the limits of the power conferred upon him by statute, the courts cannot interfere to arrest his action or review the proceedings before him. He is the exclusive judge, so far as the courts are concerned, of the sufficiency of the proof of the charges, and his findings are not reviewable by any court.

4. That clause of the bill of rights that no person shall be deprived of life, liberty, or property without due process of law is not infringed by a statute giving the governor power to remove a superintendent of public instruction from office for incompetency, neglect of duty, or malfeasance in office, without a trial, in a court of law, there being no such thing as "title" or "property" in a public office, within the meaning of that section.

5. The power conferred on the governor of the territory by section 5976, St. 1893, is administrative, and not judicial, and therefore not in conflict with section 9 of the organic act, conferring judicial power on the courts of the territory.

6. No one has a right of property in an office, such as would bar the executive from removing him, if cause presented, where the statute confers that power; or, even without a statute, an executive officer may exercise the power of removal, unless expressly prohibited, for the power of appointment, under the law, carries with it the power of removal under the law.

Petition by Evan D. Cameron, as superintendent of public instruction and ex officio auditor of Oklahoma territory, for a writ of mandamus requiring J. H. Parker to deliver to petitioner all property in his hands pertaining to the office of superintendent of public instruction and ex officio auditor of the territory. Writ allowed.

Dale, C. J., and Burford, J., dissenting.

On the 23d day of February, 1894, Evan D. Cameron, as superintendent of public instruction and ex officio auditor of the territory of Oklahoma, filed his petition and affidavit for a writ of mandamus against J. H. Parker, in this court, praying that an alternative writ issue, commanding said defendant, J. H. Parker, on service thereof, to forthwith deliver to him all office furniture and fixtures, seal, books, records, files, and other property, of every kind or character, belonging or pertaining to the office of superintendent of public instruction and ex officio auditor of the territory of Oklahoma, as aforesaid; or, on default thereof, to be and appear before the supreme court of Oklahoma territory, on the 1st day of March, 1894, at 10 o'clock a. m., to show cause why he had not so rendered obedience as commanded in said writ.

The writ was allowed by Associate Justice Scott, which, embracing all exhibits, and omitting caption and attestation, reads as follows:

"The Territory of Oklahoma to J. H. Parker-Greeting: Whereas, it has been made to appear to said court and the Hon. Henry W. Scott, associate justice thereof, by the petition and affidavit of the plaintiff, Evan D. Cameron, that you, the said J. H. Parker, were on the 21st day of February, 1894, the duly qualified and acting superintendent of public instruction and ex officio auditor of the territory of Oklahoma: that on said day, acting upon charges filed, and after due notice and hearing, his excellency, William C. Renfrow, governor or the territory of Oklahoma, removed you, the said Parker, from said office, for cause, to wit, malfeasance in office and neglect of duty (a copy of said order of removal, made as aforesaid, is hereto attached, marked â??Exhibit A,â?? and made a part of this writ); that thereby said office became and was vacant; that afterwards, on said 21st day of February, the plaintiff, Evan D. Cameron, was duly appointed and commissioned as superintendent of public instruction and ex officio auditor of the territory of Oklahoma, vice J. H. Parker removed; that a copy of said commission is hereto attached, marked â??Exhibit B,â?? and made a part of this writ; that after the appointment aforesaid, and on the same day, said plaintiff, Evan D. Cameron, qualified as said officer by filing the bonds and subscribing the oath of office required by law; that he then and there became, and now is, the legally qualified incumbent of said office; that the said defendant, Parker, after his removal from the office of superintendent of public instruction and ex officio auditor, as aforesaid, retained the exclusive possession of, and continues to retain in his custody and control, all the property and effects belonging to said office, consisting, as nearly as can be described, of office furniture and fixtures, a safe, books, records, files, seal, and other paraphernalia belonging to said office of superintendent of public instruction and ex officio auditor of the territory of Oklahoma; that demand has been made on said defendant, Parker, by the said plaintiff, Cameron, for the possession of said property, paraphernalia, and effects belonging to said office, and said Parker wrongfully refused, and still wrongfully and unlawfully refuses, to deliver the same, or any part thereof, to the plaintiff; that a copy of said demand, with the affidavit of service by said Evan D. Cameron, is hereto attached, marked â??Exhibit C,â?? and made a part of this writ: that by reason of said wrongful and unlawful refusal to deliver said property belonging to said office, as aforesaid, the plaintiff is unable to properly discharge his official duties; that he has no adequate remedy at law by which to obtain possession of said property and effects; that, unless the relief asked for is granted, great injury will result to the public having business with said office, and irreparable injury and damage will be done the plaintiff herein: Now, therefore, being willing that full and speedy justice shall be done in the premises, we do command you, the said J. H. Parker, that forthwith, on the service of this writ, you deliver to the plaintiff, Evan D. Cameron, superintendent of public instruction and ex officio auditor of the territory of Oklahoma, the office furniture and fixtures, the seal, books, records, files, safe, and all other property and paraphernalia pertaining or in any wise belonging to said office, or that you shall show cause to the honorable supreme court of the territory of Oklahoma, at its session, at 10 o'clock a. m., on the 1st day of March, 1894, at the city of Guthrie, why you have not done so; and have you then and there this writ with your return that you have done as you are hereby commanded. [Signed] Henry W. Scott, Associate Justice of the Supreme Court of the Territory of Oklahoma."

"Exhibit A.

"Executive Office. February 21st, 1894. In the Matter of the Charges and Specifications of Malfeasance in Office and Neglect of Duty against J. H. Parker, Territorial Superintendent of Public Instruction and Ex Officio Auditor of the Territory of Oklahoma. Certain charges and specifications having been preferred against J. H. Parker, superintendent of public instruction and ex officio auditor, charging malfeasance and neglect of duty, and duly filed in this office, and afterwards certain amended and supplemental charges were filed, and a copy of said charges and specifications, as well as the amended and supplemental charges and specifications, having been served on said J. H. Parker, together with a notice of the filing of the same in this office, and the said J. H. Parker was given until the 29th day of August, 1893, to file his answer or any other explanation he might desire to make to said charges and specifications, on the 29th day of August, 1893, said Parker appeared at this office, in person and by his attorneys, and presented his written objection to the authority of the governor to examine into this matter, which objection was overruled, and the said Parker asked for further time to prepare and file a written answer to said charges and specifications, which request for time was granted; and on the 6th day of September, 1893, said J. H. Parker appeared in person and by his attorneys, and filed his answer and explanation in writing to said amended charges and specifications. After carefully examining and fully investigating said answer and explanation, and said matter coming on this day to be further considered, and it appearing that said charges and specifications filed against said Parker as said superintendent of public instruction and ex officio auditor of said territory, and the evidence submitted in support thereof, and also the answer of said Parker and his explanation of said charges, I find that the allegations of malfeasance in office contained in charge No. 1 and specifications thereunder have been fully made out and sustained, in this, to wit: That said Parker, as such superintendent and auditor, illegally and wrongfully audited and allowed certain accounts for mileage and expenses of the board of regents of the Oklahoma Agricultural and Mechanical College, and also audited and wrongfully allowed certain accounts of said regents for per diem and mileage, and also audited and wrongfully allowed certain accounts of the State Capital Printing Co., for printing the laws of the last session of the legislative assembly of the territory of Oklahoma, beyond the maximum fixed by law; and I further find that the allegations of neglect of duty contained in charge No.

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