Chickasha Cotton Oil Co. v. Lamb & Tyner

• Decision Date: 07 March 1911
• Citation: 114 P. 333,28 Okla. 275,1911 OK 68
• Parties: CHICKASHA COTTON OIL CO. v. LAMB & TYNER.
• Court: Oklahoma Supreme Court

114 P. 333

28 Okla. 275, 1911 OK 68

CHICKASHA COTTON OIL CO. v. LAMB & TYNER.

Supreme Court of Oklahoma

March 7, 1911

Syllabus by the Court.

Under section 59, art. 5, of the Constitution, which directs that no local or special law shall be enacted where a general law can be made applicable, the Legislature must determine whether a general law can be made applicable to the subject-matter in regard to which a special or local law is enacted; and a local or special law enacted in such case will be held valid by the courts.

Section 46, art. 5, Constitution, prohibits the enactment of special or local laws upon any of the subjects therein named, except such local or special legislation upon said subjects as are authorized by other provisions of the Constitution.

The act of the Legislature approved March 12, 1910 (Laws 1910, c 47), establishing a county superior court in the city of Clinton, Custer county, does not violate those provisions of section 46, art. 5, of the Constitution, prohibiting the enactment of local or special laws regulating the affairs of counties or cities, creating offices in counties, or regulating the jurisdiction of courts.

In an action by physicians against an oil mill company for services rendered its employé, plaintiffs were permitted to testify that the messenger who called for them stated he had been sent by the president or manager of the company, and that the company would pay for the services. Held error in the absence of any other evidence showing such messenger to be the agent of the company.

The company defended against any liability on the ground that its manager did not contract for or request the services of plaintiffs, and that, if he did, he was without authority to bind the company. The court refused to permit the manager to testify as to what his authority was, and that he had no authority from the company to employ physicians to serve its employés in this class of cases. Held error.

(Additional Syllabus by Editorial Staff.)

Supreme Court Rule 25 (20 Okl. xii, 95 P. viii), requiring the full substance of the testimony to the admission or exclusion of which complaint is made to be set out, does not require that the testimony shall be set out in the brief in totidem verbis.

Admissions of an agent, to be admissible against the principal, must be made as agent and while he is acting for the principal within his authority.

Error from Superior Court, Custer County; J. W. Lawter, Judge.

Action by Lamb & Tyner against the Chickasha Cotton Oil Company. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

Andrew J. Welch, for plaintiff in error.

M. L Holcombe, for defendants in error.

HAYES J.

Throughout this opinion, plaintiff in error will be referred to as "defendant," and defendants in error as "plaintiffs."

This action originated before E. C. Ballew, a justice of the peace at Clinton in Custer county, and was brought by plaintiffs to recover upon an open account for medical services rendered to one Bill Lindley, an employé of defendant, in treating a gunshot wound received by said employé in a personal encounter with a trespasser upon defendant's premises. The justice court gave judgment for plaintiffs, from which defendant appealed to the county court of Custer county where, upon a motion filed by plaintiffs, an order was made transferring the cause to the superior court of Custer county, located at Clinton. There was a trial to a jury in that court which resulted in a verdict and judgment for plaintiffs for the amount sued for. To reverse that judgment this proceeding in error is prosecuted.

One of the principal errors urged for reversal of the cause is that the trial court was without jurisdiction because of the invalidity of the act creating that court. The validity of the act is questioned by defendant upon the ground that it contravenes certain provisions of the Constitution. The act creating the superior court of Custer county was approved March 12, 1910 (Session Laws of Okl. 1910, p. 78). Since it is claimed by defendant that different provisions of this act are in conflict with the Constitution, we here set out the act in full:

"An act creating and establishing a county superior court in the city of Clinton, Custer county, Oklahoma; fixing the jurisdiction and procedure; providing for a judge for said court; for the election, appointment, term of office and compensation of said judge; providing for a clerk and stenographer and fixing the compensation for the same, and declaring an emergency.

"Be it enacted by the people of the state of Oklahoma:

"Section 1. There is hereby created and established in the city of Clinton, Custer county, Oklahoma, a court of civil and criminal jurisdiction, coextensive with the county, to be known as the superior court of such county, which shall be a court of record, and shall have and exercise the same jurisdiction as provided by law for other superior courts of this state: Provided, that the city of Clinton shall furnish, free of cost, a suitable building for said court.

"Sec. 2. The said court shall be presided over by one judge who shall be a resident of Custer county. Upon the approval of this act, the Governor shall appoint a judge for said court, who shall serve until the second Monday in January, A. D. 1911, and the judge of said court shall, by order of record, fix the terms of said court at not less than four terms each year; provided that the first term of said court shall begin as soon as practicable after said court is organized under the provisions of this act.

"Sec. 3. At the general election of county officers to be held in the year 1910, and at every similar election every fourth year thereafter the qualified electors of Custer county shall elect a judge of such court for said county to serve from the second Monday of the following January until the second Monday of January four years thereafter and until his successor shall be elected and qualified.

"Sec. 4. All fees, fines and forfeitures imposed by said court and collected by the clerk thereof and the fees of witnesses appearing before such court shall be the same as provided by law for the district court in similar matters and shall be collected and disbursed in the same manner as collected and disbursed by the clerk of the district court.

"Sec. 5. The judge of said court shall appoint a clerk who shall serve until the second Monday in January, 1911, or until his successor is elected and qualified and such clerk shall be elected at every similar election every fourth year thereafter. The duties of such clerk shall be the same as is now provided by law for other clerks of superior courts in this state, and he shall give bond for the faithful performance of his duties as required of the clerk of the district court. The clerk of said court shall under and by direction of the judge thereof, procure a seal for said court which shall have engraved thereon the words 'Superior Court of Custer County, Oklahoma,' and said clerk shall receive the same fees and be paid in the same manner and amount as the clerk of the district court of Custer county.

"Sec. 6. The judge of said court shall appoint a stenographer whose fees and compensation shall be the same as provided by law for like services rendered by stenographers of the district courts, and shall be paid in the same manner as stenographers of the district court, and the clerk of this court shall tax the same fee for stenographers as is provided by law for payment of stenographers in the district court.

"Sec. 7. The judge of such court shall be paid the same salary as the judge of the county court of Custer county at the passage of this act and in the same manner. The places for holding the terms of said court and the necessary supplies therefor shall be provided in the same manner as are now provided for the county courts of the state.

"Sec. 8. The judge of the superior court of Custer county shall devote his entire time to his work as such judge and shall not act as counsel or attorney in any cause of action, civil or criminal, during his term of office."

The provisions of the Constitution which it is claimed the foregoing act violates are section 59 and subsections "b," "m," and "o" of section 46, art. 5 (Snyder's Constitution, pp. 181, 159-164). Said section 59 reads as follows: "Laws of a general nature shall have a uniform operation throughout the state, and where a general law can be made applicable, no special law shall be enacted."

In the enactment of the act in question, the Legislature observed all the requirements of the Constitution contained in section 32, art. 5, for the enactment of a special or local law; and in doing so gave notice of the intended introduction of said bill as required by that section.

Section 1, art. 7, of the Constitution provides: "The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law."

The foregoing section was considered by this court in Burks v. Walker, 25 Okl. 353, 109 P. 544, wherein it was said by the court: "That portion of the section reading, 'and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law,' clearly contemplates and provides that a portion of the judicial power of the state may be vested in other courts than those specifically named in the section. It is to be borne in mind that a state Constitution, in so far as it relates to the legislative department of the state, does not grant powers,...