Feuquay v. McAlister
| Decision Date | 22 July 1924 |
| Docket Number | 15477. |
| Citation | 228 P. 487,102 Okla. 164,1924 OK 660 |
| Parties | FEUQUAY ET AL. v. MCALISTER, SECRETARY OF STATE ELECTION BOARD. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
(a) In the very nature of a writ of mandamus it is a proceeding to compel some one to perform some duty which the law imposes upon him.
(b) Under our Code of Civil Procedure "mandamus" is a special proceeding, addressing itself to the equity powers and conscience of a court or judge, for the enforcement of a clear legal right, for which the law provides no adequate proceeding.
In a proceeding for writ of mandamus, unless plaintiff shows himself clearly entitled to the relief sought by such writ the writ will be refused.
Record examined, and held, that plaintiffs have failed to show any legal authority for filling a vacancy in the office of Lieutenant Governor by an election for the residue of a term, and failed to show any legal right to the relief sought.
Original mandamus by Courtland M. Feuquay and another against W. C McAlister, Secretary of State Election Board. Writ denied.
Ward Goble and Moss & Stephens, all of Oklahoma City, for plaintiffs.
Geo. F Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for defendant.
W. A Ledbetter, of Oklahoma City, amicus curiæ.
This is an original action in this court by Courtland M. Feuquay and Homer S. Hurst, wherein, to use their language:
"Plaintiffs pray that an alternative writ of mandamus issue to the defendant upon the hearing of the merits of this action, and that the defendant be ordered by this court to receive and accept the filings of these plaintiffs and cause these plaintiffs' names to be placed upon the ballot of the Democratic primary as candidates for the Democratic nomination for the office of Lieutenant Governor of the state of Oklahoma."
Plaintiffs allege that in October, 1923, a vacancy in the office of Governor was caused by the impeachment and removal of J. C. Walton, then Governor of the state, and that, as a result of such vacancy, the office of Governor, together with its duties, powers, and compensation, devolved, under the Constitution, upon the Lieutenant Governor; that the Lieutenant Governor in law and in fact thereby became Governor, and thereby created a vacancy in the office of Lieutenant Governor, and, upon the theory that a vacancy now exists in the office of Lieutenant Governor, and upon the fact that a general election is to be held in the state in November, plaintiffs allege their right to become candidates for the Democratic nomination of a candidate to fill such vacancy in the office of Lieutenant Governor for the residue of the term at the forthcoming general election.
The case has been briefed by Ward Goble, attorney for plaintiffs, and by Moss & Stephens, attorneys for plaintiffs, and by the Attorney General, Geo. F. Short, and John Barry, Assistant Attorney General, for the defendant. In addition to these briefs a brief amicus curiæ has been filed by W. A. Ledbetter of the Oklahoma City bar.
The substance and effect of plaintiffs' contention is that, when the office of Governor became vacant, the duties, powers, and emoluments of the Governor's office thereupon devolved upon the Lieutenant Governor, and that he thereupon became Governor, thus filling the vacancy in the Governor's office, and creating a vacancy in the Lieutenant Governor's office; in other words, that by filling the vacancy in the Governor's office he thereby created a vacancy in the Lieutenant Governor's office.
On the other hand, it is contended by the defendant that by reason of the vacancy in the office of Governor the duties, powers, and compensation merely descended and devolved, under the law, upon the Lieutenant Governor for the residue of the term; that he merely performed the functions of the Governor by virtue of his being Lieutenant Governor and by virtue of express provisions of the Constitution, which place such duties upon the Lieutenant Governor and authorize him and make it his duty to discharge same, and that the vacancy in the office of Governor is not thereby filled, nor a vacancy in the office of Lieutenant Governor thereby created.
In other words, the substance of defendant's contention is that the functions, duties, and powers of the Governor's office are discharged by the Lieutenant Governor as acting Governor, but that he does not become the Governor in the sense that he fills the vacancy created by the removal of the Governor, nor does he vacate the office of Lieutenant Governor by having the duties of the Governor's office placed upon him, and upon such theory denies that plaintiffs nor either of them, have a...
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