Fluke v. Canton

• Decision Date: 25 April 1912
• Docket Number: Case Number: 583
• Citation: 123 P. 1049,1912 OK 307,31 Okla. 718
• Parties: FLUKE et al. v. CANTON, Adjutant General.
• Court: Oklahoma Supreme Court

1912 OK 307

123 P. 1049

31 Okla. 718

FLUKE et al. v. CANTON, Adjutant General.

Case Number: 583

Supreme Court of Oklahoma

Decided: April 25, 1912

Syllabus

¶0 1. MILITIA--Constitutional Provisions--Bill of Rights. Under section 14, art. 2 (Bills of Rights), of the Constitution of this state, providing that the military shall be held in strict subordination to the civil authorities, the state militia in active service, and in every emergency which arises therein, is subject to the control of the civil authorities.

2. MILITIA--Control--Jurisdiction of Courts. The courts of this state having jurisdiction may, at the instance of any person who has been aggrieved or on behalf of the state, inquire into the acts of soldiers or officers of the militia of this state and determine whether they have been guilty of any conduct that would subject them to liability or punishment.

3. MILITIA--Control--Jurisdiction of Courts. A member or officer of the state militia as a soldier in active service is not relieved from civil liability for his acts while so engaged on the ground that he acted in obedience to an order received from the Governor as commander in chief through the regular military channels.

4. JUDGMENT -- Courts -- Contempt -- Self-Executing Judgment -- Jurisdiction of Appellate Court--Disobedience of Void Order. A judgment of this court rendered under authority of sections 16 and 17, act of April 17, 1908 (Sess. Laws 1907-08, p. 385), conferring exclusive original jurisdiction on this court over all controversies arising under the provisions of said act, wherein the county seat, under a certain election held to permanently locate the same in Delaware county, was determined to be at the place of Jay, is self-executing.

(a) This court has not original jurisdiction to restrain the adjutant general of this state from interfering with the county officers of said county in the location of their offices and the paraphernalia of their offices in any particular building in Jay.

(b) This court having not jurisdiction to issue the restraining order, such order having been issued without such jurisdiction is void and no contempt could be committed in refusing to obey such order.

Original proceeding on the complaint of T. C. Fluke and others against Frank M. Canton, adjutant general, for contempt. Discharged.

Stuart, Cruce & Gilbert, for complainants.

Chas. West, Atty. Gen., for respondent.

WILLIAMS, J.

¶1 On January 5, 1912, the complainants represented to this court by proper petition: That in December, 1908, upon a petition filed by a sufficient number of the citizens of Delaware county, an election was called having for its object the removal of the temporary county seat from Grove, Okla., to a place called Jay; that as a result of said election, upon the face of the returns thereof, the place of Jay was declared to be the county seat of Delaware county.

¶2 That afterwards, in due time, a proceeding was instituted in this court for the purpose of contesting said election and preventing the removal of the records of said county from the temporary county seat at Grove to the place called Jay; that a temporary injunction was issued and a referee appointed to hear the evidence and report to this court his findings of fact and conclusions of law.

¶3 That on the 28th day of June, 1911, this court rendered judgment thereon declaring the result of said election in favor of the place called Jay, and dissolving the temporary injunction therein issued.

¶4 That thereafter, on December 4, 1911, the Honorable Lee Cruce, Governor of the state, issued a proclamation in conformity with said judgment declaring Jay the county seat of said county; that on January 2, 1912, said proclamation was by the county commissioners of said county, while in regular session, duly spread of record, and the officers of said county were directed to move their records and all paraphernalia of office to a certain two-story reinforced concrete fireproof building in Jay.

¶5 That at the time of the institution of said contest the place called Jay was unincorporated; that subsequent to the institution of said contest the place called Jay was duly incorporated as the town of Jay and a plat of its territorial limits filed in the office of the register of deeds at Grove, then the county seat of said county.

¶6 That for and on behalf of the county of Delaware said board of county commissioners contracted for the building hereinbefore mentioned for the period of five years, said building to be used for a courthouse, and for the use of the various officers of the county; that, after said proclamation heretofore mentioned had been duly spread of record, the county commissioners of said county adjourned to meet at their next regular meeting in said building at Jay; that the officers of said county, acting in pursuance of the resolution of the county commissioners and the orders given by them, proceeded to remove their records and paraphernalia of office to the courthouse provided for them by said county commissioners and are now installed in said building and performing their duties as county officials as provided by law.

¶7 That on January 3, 1912, the Honorable Lee Cruce, Governor of the state, issued another proclamation declaring the result of said election and proclaiming the place called Jay to be the county seat of Delaware county, describing a particular ten acres by definite metes and bounds, and instructing the officials of said county to transfer all records and paraphernalia of office to a place within the limits described as being said ten acres and there install their offices; that said county officials refused to transfer said records to the limits described by the Governor for the reason that no adequate accommodation had been prepared and no building of sufficient safety could be found in which said records could be cared for and their duties as officers of the county performed; that, prior to the issuance of said proclamation, a proceeding was instituted in the district court in and for said Delaware county, and heard before the Hon. Thomas L. Brown, sitting as judge in said district, to restrain said county commissioners from occupying or using said building in which the records of said county were located for courthouse purposes; that, upon a hearing, the temporary relief prayed for by the petitioners in that proceeding was denied, but said cause is now pending in the district court of said county for a final hearing upon its merits.

¶8 That the officials of said county have at no time failed or refused, nor will they fail or refuse, to obey the mandate or orders of any court of competent jurisdiction; that no insurrection or breach of the peace has occurred, nor is there any imminent danger thereof; that no forcible obstruction of the execution of the laws has been offered, nor is there reasonable apprehension thereof; that no request has been made by the district judge, county judge, or the sheriff, asking aid in suppression of any breach of the peace, tumult, riot, or resistance to the process of this state, nor does any imminent danger of such condition arising exist; that it was alleged that said town of Jay and the citizens thereof were in quiet and peaceable condition and amenable to any process which might be served upon them.

"That the Hon. Frank M. Canton, adjutant general of the state of Oklahoma, is now at the town of Jay and in his official capacity attempting to move the records and the paraphernalia of office belonging to the various officers of the county of Delaware, state of Oklahoma, to the ten acres herein mentioned."

¶9 Complainants further averred that they were informed and believed that a company of militia was mustered into service under his orders for the purpose of assisting in the removal of said records, books, and paraphernalia; that all of the actions of the said adjutant general were without warrant or authority of law; and that no request had been made by any officer authorized to make the same for his assistance.

¶10 Complainants then prayed for a temporary restraining order restraining the said Frank M. Canton, adjutant general of the state of Oklahoma, and his subordinate officers and all persons acting by, through, or under him, from interfering with the officials of said county, from moving, or attempting to move, any of the records of said county, and directing him to return, in the event said records should have been moved, the same to their proper places, and return to the custody of the various officers in whose control the law requires them to be, and that upon final hearing said temporary writ be made permanent.

¶11 This court, in an order concurred in by a majority of its members, directed that a restraining order issue as prayed for in order to preserve the status quo until a hearing might be had upon this petition. That proceeding was entertained on the theory that this court had jurisdiction in the premises to protect its own judgment, and the restraining order was issued in order that a hearing might be had to determine whether the county commissioners could arrange for a courthouse in any part of Jay, including the extended limits, or whether they were confined to the original ten acres.

¶12 On February 13, 1912, the restraining order was served upon General Frank M. Canton by wire but after he had removed said records from the building designated by the board of county commissioners to the ten acres designated in the proclamation of the Governor. Thereupon he reported his action to the Governor and the Governor ordered him to disregard the orders of this court. Thereafter a complaint was filed against General Frank M. Canton in this court by the complainants asking that a citation issue against him for contempt in the premises. Said citation was served by the marshal of this court.

¶13 Thereafter upon February 29, 1912, the following order was made by the Governor, as Commander in Chief:

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