Dobbs v. Board of County Com'rs of Oklahoma County

• Decision Date: 26 May 1953
• Docket Number: No. 35947,35947
• Citation: 208 Okla. 514,257 P.2d 802
• Parties: DOBBS v. BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA COUNTY et al.
• Court: Oklahoma Supreme Court

Page 802

257 P.2d 802

208 Okla. 514

DOBBS v. BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA COUNTY et al.

No. 35947.

Supreme Court of Oklahoma.

May 26, 1953.

Syllabus by the Court.

1. Our constitution vests in the legislature the supreme power to enact laws to meet the needs of the State, and its acts should be upheld unless plainly and clearly within the express prohibitions and limitations fixed by the constitution.

2. In passing upon the constitutionality of an act of the legislature all pertinent sections of the constitution should be considered together in arriving at a correct interpretation.

3. In considering the constitutionality of an act of the legislature every presumption is to be indulged in favor of the validity of the act unless its invalidity is made to appear beyond a doubt. It is the duty of the court to uphold an act of the legislature unless it clearly violates the constitution, and if the language of the act is susceptible of a meaning that will remove the objection to its validity such interpretation should be adopted. It should never be assumed that the legislature intended to violate the constitution.

4. Sec. 11, Article VII and Sec. 2, Article XVII of the Oklahoma Constitution were not intended to limit or prohibit the legislature from enacting a general law providing for two county judges in populous counties in order to enable the county court to dispense justice without delay in accordance with the express mandate of Sec. 6, Article II which imposes upon all of our courts of justice the duty of providing a 'speedy and certain remedy' for every wrong, and that justice shall be administered without 'delay'.

5. Where this court has heretofore rendered a decision holding that an act of the legislature, similar to the one under consideration, violates the constitution, such decision should be carefully considered and upheld unless it is found to be erroneous, but if so found, it should be overruled in the interest of justice and regardless of the passage of time.

F. M. Bookstore, Oklahoma City, for plaintiff.

Everett E. Cotter, Frank Miskovsky, V. P. Crowe, Wayne Bayless, Granville Scanland by Nathan S. Sherman, Oklahoma City, for defendants.

HALLEY, Chief Justice.

Betty O. Dobbs, a resident taxpayer of Oklahoma County, attacks the constitutionality of H.B. No. 646 of the 1953 legislature, which became effective March 24, 1953, and prays that we prohibit the Board of County Commissioners of Oklahoma County from appointing a second county judge.

The above law amends Sec. 131(A), Title 19 O.S.1951, and provides additional county judges in all counties in Oklahoma having a population of 300,000 or more, as shown by the last Federal Decennial Census, and which further provides that any resident taxpayer of a county having that population may contest the constitutionality of the Act by original action in this court.

It is admitted that Oklahoma County has the required population to justify the appointment of an additional county judge, if H.B. No. 646 is held valid. An amended petition was filed showing that the Board of County Commissioners of Oklahoma County did, on March 24, 1953, appoint William A. Berry as an additional county judge for Oklahoma County and he is joined herein as a party defendant with the County Commissioners who made the appointment.

The petition alleges that H.B. No. 646 is ineffective because it violates Sec. 11, Article VII of the State Constitution.

The pertinent portion of H.B. No. 646 is Sec. 1 which is as follows:

'(A) At the general election to be held in November, 1948, and each two (2) years thereafter, there shall be elected in each County of the State of Oklahoma a County Judge, provided however in each County having a population in excess of Three Hundred Thousand (300,000) as shown by the last preceding regular Federal Decennial Census, there shall be elected an additional County Judge, and in all counties of the State of Oklahoma, a County Attorney, a Court Clerk and a County Sheriff, who shall hold office for a term of two (2) years beginning, except that of County Judge, as provided in Section 11, Article 7, Constitution of Oklahoma, on the first Monday in January following their election, and until their successors are elected and qualified.'

Section 11 of Article VII of our constitution provides:

'There is hereby established in each county in his State a County Court, which shall be a court of record; and, at the election to ratify this Constitution, there shall be elected in each county a County Judge, who shall hold his office until the close of the day next preceding the second Monday in January, nineteen hundred and eleven; and thereafter the term of office of the County Judge shall be two years, and he shall be elected at each biennal general election. The county judge shall be a qualified voter and a resident of the county at the time of his election, and a lawyer licensed to practice in any court of record of the State. The county judge shall be judge of the county court.'

Section 2 of Article XVII provides:

'There are hereby created, subject to change by the Legislature, in and for each organized county of this State, the offices of Judge of the County Court, County Attorney, Clerk of the District Court, County Clerk, Sheriff, County Treasurer, Register of Deeds, County Surveyor, Superintendent of Public Instruction, three County Commissioners, and such municipal township officers as are now provided for under the laws of the Territory of Oklahoma, except as in this Constitution otherwise provided.'

Petitioner points out that in Nichols v. Levy, 151 Okl. 245, 1 P.2d 766, 767, this court had before it a similar law, being H.B. No. 131, effective March 5, 1931, providing for two county judges in a county having a population of 220,000, and held the same unconstitutional and void.

The principal objective of the Act here attacked is the same as that of the 1931 Act. We have examined carefully the opinion in the Nichols v. Levy case decided by this court in 1931, and also the two dissenting opinions, and agree that if H.B. No. 646 is unheld it will be necessary to overrule the decision in Nichols v. Levy. In that case it was agreed that the real issue was: 'Does our Constitution prohibit the Legislature from providing for more than one judge for the county court regardless of the size of the county or the amount of court work?' Such is clearly the real issue before us.

The defendants contend that the opinion in the Nichols v. Levy is erroneous in the following particulars:

(a) The failure to sustain the constitutionality of an act of the Legislature in the absence of clear prohibition and the limitation in the constitution of the power of the Legislature to enact the law in question.

(b) The decision failed to consider certain pertinent provisions of the constitution.

(c) It failed to consider the Bill of Rights expressed in Sec. 6, Article II of our constitution, and,

(d) Their reasoning in the opinion is fallacious.

The above contentions are treated together in the brief of the defendants and since Nichols v. Levy is the only case relied upon the plaintiff, we have considered them together, with reference to the decision which must be overruled if H.B. No. 646 is to be sustained. That decision is based principally upon the provisions of Sec. 11, Article VII, supra, which provides for the establishment in each county of 'a County Court' and that there shall be elected in each county 'a County Judge' who shall hold 'his' office until a time fixed, and that thereafter the term of office of 'The county judge' shall be two years, and that 'he' shall be elected each biennial election. The qualifications of 'The county judge' are prescribed and he is required to be 'a lawyer'.

The original jurisdiction of the county court is fixed by Sec. 12, Article VII 'until otherwise provided by law'; that Sec. 10 of the same Article a District Court, 'or any judge thereof' shall have power to issue writs, while Sec. 12 provides that the county court 'or Judge thereof' shall also have such power.

It was pointed out that while Article VII provides for changes of certain sections of law, there is no such provision relative to changing the number of county judges. The provision fixing the jurisdiction of the county court contains a clause that the same may be changed by the Legislature, as has been done many times.

It was also pointed out that District Judges might be sent into other counties outside their district to try cases, but no such provision was made as to county judges.

The opinion in Nichols v. Levy is very well summarized in the body of the opinion on page 248 of 151 Okl., on page 769 of 1 P.2d wherein the court expressed disagreement with a decision handed down by the Supreme Court of Arkansas, in the following language:

'We cannot follow the reasoning of the Supreme Court of Arkansas in State v. Martin, 60 Ark. 343, 30 S.W. 421, 28 L.R.A. 153, to the effect that the articles used in a constitutional provision are too indefinite to define or limit the number of judges which may be provided by legislation. We cannot hold that 'a county judge,' 'the county judge,' 'his election,' and 'a lawyer' refer to two or more judges. As well might it be said that the provision in the Constitution for 'a Governor' would authorize a legislative enactment for two Governors. The illustration used by the plaintiff is that an agent authorized to buy 'a horse' would not thereby be authorized to buy two horses.'

Before discussing certain phases of the Nichols v. Levy decision we shall call attention to certain other well established rules governing constitutional interpretation. It is pointed out by defendants that a State Constitution is an instrument of limitations in the powers of the State government, while the Federal Constitution is a limited grant of power. Our Legislature is supreme, except as limited by the express provisions of our...