Ex parte Hudson

• Decision Date: 21 January 1910
• Citation: 106 P. 540,3 Okla.Crim. 393,1910 OK CR 17
• Parties: Ex parte HUDSON.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

106 P. 540

3 Okla.Crim. 393, 1910 OK CR 17

Ex parte HUDSON.

Court of Criminal Appeals of Oklahoma

January 21, 1910

Syllabus by the Court.

Section 15, Bunn's Const. Okl., providing that "right and justice shall be administered without sale, denial, delay or prejudice," is self-executing.

When the prejudice of the trial judge is made the ground of a motion for a change of judge, the Legislature may prescribe the method of determining this matter, but it is without power to abolish this ground of disqualification.

A defendant seeking to disqualify a trial judge upon any ground must follow the procedure prescribed in section 5, Act March 22, 1909 (Sess. Laws 1909, p. 169, c. 14, art. 1).

The act of March 22, 1909 (Sess. Laws 1909, p. 167, c. 14, art. 1) prescribing the disqualifications of judges of courts of record, and providing for the election of a special judge pro tempore when the regular judge is disqualified, and repealing section 8, art. 1, c. 27, p. 285, Sess. Laws 1907-1908, is free from constitutional objections.

That portion of section 3, art. 5, of the official copy of the Constitution, which provides that "the style of all bills shall be 'Be it enacted by the people of the state of Oklahoma,"' applies only to bills adopted by the people under the initiative and referendum clause of the Constitution.

Application of J. F. Hudson for writ of habeas corpus. Writ denied.

Doyle J., dissenting.

Nance & Priest, for petitioner.

Fred S Caldwell, for the State.

FURMAN P.J.

On the 3d day of November, 1909, the defendant was convicted in the county court of Adair county of the offense of selling whisky. On the 6th day of November, 1909, defendant applied to this court for a writ of habeas corpus, alleging that he was in the custody of the sheriff of Adair county by virtue of such conviction, and that the conviction was illegal for want of jurisdiction of the county court to try said cause upon the ground that before the beginning of the trial the defendant had filed in said court his affidavit, alleging that the county judge who was presiding at said trial was so biased and prejudiced against the defendant that he could not obtain a fair and impartial trial before said county judge on account of such bias and prejudice, and that said county judge had disregarded said affidavit, and refused to allow defendant a change of judge, and that on this account the judgment of conviction was void and the restraint of the defendant illegal.

Section 15, Bunn's Const. Okl., is as follows: "The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial delay, or prejudice." The clear meaning of this provision is to prohibit the trial of any cause by a judge or juror who are prejudiced against either party to the cause. Prohibitive clauses of a constitution are always self-executing, and require no legislative provisions for their enforcement. In Davis v. Burke, 179 U.S. 403, 21 S.Ct. 210, 45 L.Ed. 251, the Supreme Court of the United States says: "*** Where a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provisions. In short, if complete in itself, it executes itself. ***"

This question was considered and decided in Rea v. State, 105 P. 384, 3 Okl. Cr. --. It is not necessary to repeat here what we said there. In Lincoln v. Territory, 8 Okl. 546, 58 P. 730, the Supreme Court of Oklahoma Territory, in construing the territorial statute upon this subject, said: "It follows, then, as a matter of course, that the judge who would proceed with the trial after the making and filing of such an affidavit would do so without power or authority, and the trial would be a nullity." If a trial would be a nullity on account of the violation of a statutory provision, it would certainly be a violation on account of the violation of a constitutional provision. Finding this provision in the Constitution, it is our plain duty to enforce it.

The Legislature of Oklahoma, on March 22, 1909, passed an act (Sess. Laws 1909, p. 167, c. 14, art. 1) providing for the disqualification of judges, the title of which is as follows: "An act prescribing the disqualifications of judges of courts of record and providing for the selection or appointment of a special judge or judge pro tempore when the regular judge is disqualified and repealing section 8, article 1, chapter xxvii of the Session Laws of 1907-08." The first section provides: "No judge of any court of record shall sit in any cause or proceeding in which he may be interested, or in the result of which he may be interested or related to any party to said cause within the fourth degree of consanguinity or affinity, or which he has been of counsel for either side, or in which he called in question the validity of any judgment of (or) proceeding in which he was of counsel or interested, or the validity of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties to said action entered of record: Provided, that the disqualifications herein imposed shall not exclude the disqualifications at common law." Sess. Laws Okl. 1909, p. 167. This act repeals all other acts or parts of acts in conflict with it. It also provides for the selection of a special judge when the regular judge is disqualified. This act does not mention the disqualification on account of prejudice of the judge. It is clear that the Legislature did not intend to include in the grounds of disqualifications enumerated all of the grounds upon which a judge would be disqualified, because it is expressly stated that disqualifications at common law are not excluded. Even if the Legislature wished to exclude constitutional disqualifications, it was without power to do so. The only serious question in this case is as to whether the act of March 22, 1909, is valid, because it omits what is known as the enacting clause.

In determining this question it is important to examine the original copy of the Constitution. Section 3, art. 5, of the official copy of the Constitution is as follows: "Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the Legislature which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures voted on by the people. All elections on measures referred to the people of the state shall be had at the next election held throughout the state, except when the Legislature or the Governor shall order a special election for the express purpose of making such reference. Any measure referred to the people by the referendum shall take effect and be in force when it shall have been approved by a majority of the votes cast thereon and not otherwise. The style of all bills shall be: 'Be it enacted by the people of the state of Oklahoma.' Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State and addressed to the Governor of the state, who shall submit the same to the people. The Legislature shall make suitable provisions for carrying into effect the provisions of this article." It will be observed that among other things this section provides that "The style of all bills shall be 'Be it enacted by the people of the state of Oklahoma."' Some courts hold that similar provisions in their Constitutions are not mandatory, but merely directory.

In City of Cape Girardeau v. Riley et al., 52 Mo. 428, 14 Am. Rep. 427, the Supreme Court of Missouri said: "The very question presented arose in a case in Maryland. The Constitution in that state is the same as ours in regard to the style of laws. A law was there passed omitting the required style, and it was decided that the constitutional provision was directory only, and not mandatory, and that the omission of the enacting clause did not render the act unconstitutional and void. McPherson v. Leonard, 29 Md. 377. So in Mississippi it is held that the provision is directory, and that it is not essential that there should be a literal adherence to the formula of words prescribed by the Constitution, but that the acts need only show the authority by which they were adopted, and that it was the intention of the Legislature that they should have the effect of laws. Swann v. Buck, 40 Miss. 268. After a diligent search I have failed to find any case holding that a law was...