Dabney v. Hooker

• Decision Date: 22 September 1926
• Docket Number: 17766.
• Parties: DABNEY v. HOOKER, District Judge, et al.
• Court: Oklahoma Supreme Court

249 P. 381

121 Okla. 193, 1926 OK 751

DABNEY v. HOOKER, District Judge, et al.

No. 17766.

Supreme Court of Oklahoma

September 22, 1926

Syllabus by the Court.

At common law, there existed no right to contest in the courts the title to the nomination of a political party for public office, and none now exists unless specially provided for by statute.

Prohibition is the proper remedy where an inferior tribunal assumes to exercise judicial power not granted by law or is attempting to make an unauthorized application of judicial force.

Section 57, art. 5, of the Constitution of this state, ordaining that "every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title," is mandatory; but its requirements are not to be exactingly enforced, or in such a technical manner as to cripple legislation. The title to a bill may be general and need not specify every clause, but it is sufficient if the subject of such clause or section is germane, pertaining to, and referable to, the general subject stated in the title.

The proviso "that this act shall not apply to primary election" being a part of the Act of April 9, 1921 (chapter 96, S. L. 1925), is not unconstitutional and void as being in violation of article 5, § 57, of the Constitution which requires "every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title."

Where one statute adopts the particular provisions of another by specific reference, it adopts the second statute as it exists at the time of adoption, and not subsequent amendments of it. But where one statute adopts, not another particular statute or section, but the general law governing a subject, the reference will be regarded as including, not only the law in force at the date of the adopting act, but also the law in force when action is taken, or proceedings are resorted to.

Additional Syllabus by Editorial Staff.

Contest by unsuccessful candidate in primary election should be by civil action, in view of Comp. St. 1921, §§ 459, 6104, 6123 and section 458, as amended by Laws 1925, c. 96.

Original proceeding by Edwin Dabney for a writ of prohibition to prohibit the defendant Sam Hooker, District Judge of Oklahoma County, and said court from proceeding further in case No 50961, wherein the defendant herein, O. H. Searcy, is contesting the nomination of Dabney as candidate for Attorney General. Writ granted.

Nicholson, C.J., and Lester, J., dissenting.

C. B. Cochran, F. A. Rittenhouse, John Tomerlin, and C. E. Hall, all of Oklahoma City, for plaintiff.

M. E. Jordan, Lydick & McPherren, and Kittie C. Sturdevant, all of Oklahoma City, for defendants.

MASON J.

At the primary election held August 3, 1926, Edwin Dabney and O. H. Searcy and others were candidates for the nomination of the Democratic party for the office of Attorney General. The state election board, upon a canvass of the returns, issued its certificate of nomination to Dabney. Thereupon Searcy instituted a civil action in the district court of Oklahoma county to try the title to such nomination. Dabney objected to the district court of Oklahoma county taking jurisdiction of said contest, on the ground that a contest of the result of a primary election is not a legal right in the absence of a statute specifically granting the right to such contest, and that there is no statute in this state authorizing or permitting a defeated candidate in a primary election to maintain a contest against another to whom a certificate of nomination has been issued. This objection was overruled. This original proceeding was then instituted in this court by Dabney, as plaintiff, filing his petition for a writ of prohibition to issue against Sam Hooker, judge of the district court of Oklahoma county, and O. H. Searcy, as defendant, to prohibit the said district court and judge thereof from proceeding in any manner in said cause wherein Searcy was seeking to contest said nomination.

Is there any authority, statutory or otherwise, which provides for a contest of this nature? At common law there existed no right to contest in the courts the title to the nomination of a political party for public office. Jarman v. Mason, 102 Okl. 278, 229 P. 459; Lansdon v. State Board, 18 Idaho, 596, 111 P. 133; State ex rel. Hatfield v. Carrington, 194 Iowa, 785, 190 N.W. 390; Bradley v. Board, 154 Mich. 274, 117 N.W. 649; State v. Woodruff, 68 N. J. Law, 89, 52 A. 294.

Therefore, unless the statute authorizes such method of contest, the plaintiff herein is entitled to the relief sought.

Section 6123, Compiled Oklahoma Statutes 1921, provides:

"All contests arising out of primary elections shall be settled and decided in the same manner as is now or may hereafter be by law provided for general elections, except as herein otherwise provided."

And section 458, Compiled Oklahoma Statutes 1921, relating to the manner for contesting title to office acquired in a general election, provides:

"The writ of quo warranto, and proceedings by information in the nature of quo warranto, are abolished, and the remedies heretofore obtainable in those forms may be had by civil action."

Section 459, Compiled Oklahoma Statutes 1921, provides:

" Grounds for Action in the Nature of Quo Warranto. Such action may be brought in the Supreme Court or in the district court, in the following cases:

* * * * * * *

Sixth. For any other cause for which a remedy might have been heretofore obtained by writ of quo warranto, or information in the nature of quo warranto."

Section 6104, Compiled Oklahoma Statutes 1921, provides as follows:

"The ballots shall be counted and return made in such primary election as by law provided for general elections; and primary election shall in all respects conform to the laws governing general elections, except as herein otherwise provided, and all provisions of the laws governing general elections not in conflict with this chapter are hereby made applicable and put in force herewith."

Sections 6123 and 6104, supra, are part of chapter 40, Elections Primary, and, where-ever a law governs general elections and is not in conflict with or opposed to the primary law, such law governing general elections, including contests, is applicable to primary elections.

From the foregoing sections it therefore appears that, where an unsuccessful candidate in a primary election desires to contest his successful opponent's title to the nomination there obtained, and in so doing to seek relief not "otherwise provided" in the primary election law, his remedy is "by civil action." Since the adoption of the foregoing sections, however, the Legislature passed the Act of April 9, 1925 (chapter 96, p. 145, S. L. 1925), which, including the title, is as follows:

"Election Contests.

An act amending section 4919 of article XIII, chapter 60 of the Revised Laws of 1910, being section 458, article XIII, chapter 3, of the Compiled Statutes of 1921, by creating a right of action to contest election at any time after the issuance of the election certificate or after twenty days after the return of the state, county, township or city election board, and declaring an emergency.

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

Quo Warranto-Abolished.

Section 1. That section 458, of the Compiled Laws of Oklahoma, 1921, be and the same is hereby amended to read as follows:

Sec. 458. The writ of quo warranto, and proceedings by information in the nature of quo warranto, are abolished and the remedies heretofore obtainable in those forms may be had by civil action; provided, that such cause of action may be instituted and maintained by the contestant for such office at any time after the issuance of the certificate of election by the state, county, township or city election boards, and before the expiration of thirty days after such official is inducted into office; provided further, that all suits now pending, contesting such elections, shall not be dismissed because of the prematurity as to time of their commencement, which shall be deemed valid and timely, if commenced after the issuance of the election certificate or after twenty days after the result of said election having been declared by such election board; and provided further, that this act shall not apply to primary election."

Counsel for defendants contend that the title to the foregoing act is not broad enough to permit of the proviso "that this act shall not apply to primary election."

The determination of this cause involves the consideration of the constitutionality of said act amending section 458, supra; the operation and effect of that amendatory act upon the right of contest of a primary election as it existed prior thereto; the construction to be placed on section 6123, supra, and section 6104, supra, and the effect of the adoption of the general election laws pertaining to contests by section 6123, supra, making the same applicable to contests in primary elections.

Before discussing these matters, we desire to call attention to the well-established rule of this court that prohibition is the proper remedy where an inferior tribunal assumes to exercise judicial power not granted by law or is attempting to make an unauthorized application of judicial force.

The title of the Act of April 9, 1925, by providing "an act amending * * * section 458, * * * of the Compiled Statutes of 1921 * * *," etc., is sufficiently broad to permit an amendment to said section of any matter germane to the subject of said section prior to the amendment, and said title by providing, "by creating a right of action to contest election at any time after the issuance of the election certificate," is broad enough to permit of an amendment to said section,...