Diehl v. Crump

• Decision Date: 25 February 1919
• Docket Number: 10937.
• Parties: DIEHL v. CRUMP, District Court Judge.
• Court: Oklahoma Supreme Court

179 P. 4

72 Okla. 108, 1919 OK 62

DIEHL v. CRUMP, District Court Judge.

No. 10937.

Supreme Court of Oklahoma

February 25, 1919

Syllabus by the Court.

Record examined, and held: (1) That section 1 of chapter 135, Session Laws 1917, is constitutional and valid. (2) That section 14 of said act is special and local legislation, and is unconstitutional (1) because it was not published as required by section 32, article 5, Williams' Constitution, and (2) because it attempts to deprive the district court of judicial power and vest the same in the litigants.

A law which provides that the mere filing of an affidavit charging bias and prejudice is sufficient to disqualify a judge without any hearing or determination of whether the affidavit is true or false is unconstitutional as depriving the court of judicial power and vesting the same in the litigants to that extent.

Sharp and McNeill, JJ., dissenting in part.

Additional Syllabus by Editorial Staff.

Sess Laws 1917, c. 135, § 14, transferring all cases or causes from district court to superior court of Okfuskee county created by the act and prescribing the procedure therefor, violates Williams' Const. art. 5, § 59, providing that laws of a general nature shall have a uniform operation throughout the state.

Sess. Laws 1917, c. 135, § 14, transferring all causes from district court to superior court of Okfuskee county, created by the act and prescribing the procedure therefore, violated Williams' Const. art. 5, § 46, forbidding any local or special law regulating the practice or jurisdiction of or changing rules of evidence in judicial proceedings.

Error from District Court, Okfuskee County; Geo. C. Crump, Judge.

Original application by C. H. Diehl for prohibition against Hon. George C. Crump, as Judge of the District Court for the Ninth Judicial District, and the District Court for Okfuskee County, Okl. Writ denied.

S. L. O'Bannon, C. T. Huddleston, and Logan Stephenson, all of Okemah, for plaintiff in error.

S. P. Freeling, R. McMillan, and R. E. Wood, all of Oklahoma City, and C. E. Hall, of Holdenville, for defendant in error.

KANE J.

This is an original application for a writ prohibiting George C. Crump, as judge of the district court of Okfuskee county, from trying a certain criminal case wherein the petitioner is charged upon an indictment with a violation of the election laws of the state.

The petition of the plaintiff charges in effect that, when he was called upon to plead to the indictment filed against him in the criminal case, he filed the affidavit prescribed by section 14, chapter 135, Session Laws 1917, wherein he stated that he could not have a fair and impartial trial before said district court by reason of the bias and prejudice of said district judge; that by virtue of said statute, immediately upon filing said affidavit the district court lost, and the superior court acquired, jurisdiction of said criminal cause.

The answer of the respondent alleged in effect that, the act of the Legislature which attempts to create a superior court for Okfuskee county invaded the province of the judiciary, and was unconstitutional and void for the reasons that it invaded the province of the judiciary, and that, although said act was local or special in its nature, it was considered and passed by the Legislature without being published as required by section 32, article 5, Williams' Constitution, which provides:

"No special or local law shall be considered by the Legislature until notice of the intended introduction of such bill or bills shall first have been published for four consecutive weeks in some newspaper published or of general circulation in the city or county affected by such law, stating in substance the contents thereof and verified proof of such publication filed with the secretary of state."

The particular sections of the act which are attacked as unconstitutional are sections 1 and 14, which provide, respectively, as follows:

Section 1: "There is hereby created and established in every county in this state, having a population of more than 19,990 and not to exceed 20,000, according to the last or any future federal census, a court of civil and criminal jurisdiction co-extensive with the county to be known as the superior court of such county, which shall be a court of record and shall be held at the county seat of such county."

Section 14: "All causes, whether civil, criminal probate or otherwise, now pending or that may hereafter be filed in the district court of every such county, shall be transferred to such superior court by the court clerk of such county on the filing of an affidavit in such district court, with the court clerk thereof, by any party to any such cause or his or her attorney of record, or by the county attorney of any such county, stating that such party or that the state of Oklahoma, if the same be a criminal case, cannot have a fair and impartial trial before such district judge by reason of the bias and prejudice of such district judge. Immediately upon the filing of such affidavits and concurrently therewith, the district court shall lose jurisdiction and the superior court shall acquire jurisdiction of such cause, and it is hereby made the duty of such court

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