In re Opinion of the Judges

• Citation: 105 P. 325,25 Okla. 76,1909 OK 277
• Parties: In re OPINION OF THE JUDGES.
• Decision Date: 09 November 1909
• Court: Supreme Court of Oklahoma

105 P. 325

25 Okla. 76, 1909 OK 277

In re OPINION OF THE JUDGES.

Supreme Court of Oklahoma

November 9, 1909

Syllabus by the Court.

Upon the creation of the Criminal Court of Appeals, all criminal jurisdiction theretofore vested in this court ceased and vested in that court, together with the authority to express an opinion on matters referred pursuant to Wilson's Rev. & Ann. St. Okl. 1903, §§ 5588, 5589, should said sections by that court be held constitutional.

On application by the Governor for an opinion of the court relating to the subject herein discussed, the Supreme Court handed down the following, by TURNER, J.:

To Hon C. N. Haskell, Governor of the State of Oklahoma:

Responding to your official communication of the 2d inst., addressed to the Chief Justice of this court, accompanied by the record in the case of State of Oklahoma v. Henry T. Armstrong convicted of murder in the district court of Noble county March 26, 1909, and sentenced March 29, 1909, to hang on May 21, 1909, but subsequently superseded, requesting that we furnish you an opinion thereon pursuant to Wilson's Rev. & Ann. St. Okl. 1903, § 5589, we have to say that, after having given said request that consideration which it is entitled to receive, emanating, as it does, from so high a source, we feel that we should refrain from acceding to it. Independent of any opinion heretofore expressed by us which might be considered as a precedent, and viewing the matter anew, we deem it proper at this time to state briefly our reasons for so refraining.

The powers of the state government are, under the Constitution divided into three distinct departments--legislative executive, and judicial--and the duties of each department are distinctly defined. These departments are independent of each other and sovereign within their respective spheres. Neither can exercise the powers properly belonging to the other, and "it is the duty of each to abstain from and oppose encroachments on another." It is also true, as stated by Chief Justice Jay, in Hayburn's Case, 2 Dall (Pa.) 409, 1 L.Ed. 436: "That neither the legislative nor the executive branches can constitutionally assign to the judicial any duties but such as are properly judicial and to be performed in judicial manner." The statute, supra, purports to impose on this court a duty which, if discharged, would amount neither to a judicial act, nor one to be performed in a judicial manner, but...