Jarman v. Mason

• Decision Date: 16 September 1924
• Citation: 229 P. 459,102 Okla. 278,1924 OK 722
• Parties: JARMAN v. MASON et al.
• Court: Oklahoma Supreme Court

1924 OK 722

229 P. 459

102 Okla. 278

JARMAN v. MASON et al.

Supreme Court of Oklahoma

Decided: September 16, 1924

Application for leave to file original action in this court by J. H. Jarman against Chas. W. Mason and others. Application denied.

Syllabus

¶0 1. Courts--Supreme Court--Original Jurisdiction--Quo Warranto.

The Supreme Court has original jurisdiction in a civil action brought under the provisions of sections 458 and 459, Comp. Stats. 1921, to obtain relief similar to that anciently obtainable by writ of quo warranto.

2. Quo Warranto -- Title to Certificate of Nomination to Office.

A civil action authorized by sections 458 and 459, Comp. Stats. 1921, to obtain relief similar to that anciently obtainable by writ of quo warranto is, by section 6123, Comp. Stats. 1921, made the proper remedy to try the title of one to an already issued certificate of nomination by a political party for public office obtained in a primary election, provided that the relief is sought upon issues which could not have been adequately determined by a recount of ballots authorized by section 6107, Comp. Stats. 1921.

3. Courts -- Original Concurrent Jurisdiction of Supreme Court--When Exercised.

The original jurisdiction of the Supreme Court, when concurrent with that of the district court, is intended primarily as a "stand-by" service, which it will exercise only when, from the exigencies of the case, great injury will be done by its refusal so to do. A different rule would so flood this court with original actions as to destroy its efficiency as an appellate court.

4. Same--Right to Jury Trial.

This court has never assumed jurisdiction in a case where the district court had concurrent jurisdiction, and where a party thereto was entitled to a jury trial and so demanded, and it will not do so unless the exigencies of the case are such that exceedingly great injustice will be done if this court refused so to do. We shall not vary from this principle merely because one of the members of this court and a Supreme Court Commissioner, his opponent, are involved, but will extend our jurisdiction to the high only as we do the lowly.

Thos. H. Owen, Geo. S. Ramsey, E. B. Arnold, Chas. G. Watts, and Warren K. Snyder, for plaintiff

Chas. B. Cochran, for defendant Mason.

LYDICK, J.

¶1 At the primary election held August 5, 1924, J. H. Jarman and Chas. W. Mason and others were candidates for the nomination by the Democratic party for Justice of the Supreme Court of the First judicial district. Upon a canvass of the returns the State Election Board determined that Chas. W. Mason had received a plurality of the votes cast and issued to him its certificate of nomination. J. H. Jarman has filed his application with this court asking leave to institute an original action in this court against Chas. W. Mason and the unsuccessful candidates for such nomination and against the State Election Board and its members to contest the result of such primary election as determined by the State Election Board, tendering the petition which he seeks to file in the institution of such action. In his petition the plaintiff alleges that the official canvass of the election returns as made by the State Election Board is erroneous in certain particulars, which we classify as follows:

(1) That in certain voting precincts the precinct election boards erroneously certified to the number of votes cast for himself and his opponent, Mason.

(2) That, as to one certain voting precinct, the county election board of that county erroneously tabulated the properly certified return made by the precinct board.

(3) That, as to one other certain voting precinct, the precinct election board properly executed and delivered to the county election board its certificate giving the correct vote received by each candidate, but that after same was received by the county election board someone not named nor designated in the petition fraudulently and illegally changed the figures thereof and that the county election board tabulated the falsified figures. It is not charged that any legally qualified electors were deprived of the right to vote or that unqualified electors were permitted to do so, nor is there any charge of illegal acts other than those above classified. The plaintiff alleges that by each of the errors and changes, the vote he actually received was decreased and that of his opponent, Mason, increased, and that with these errors corrected his vote would entitle him to the certificate of nomination. In his petition the plaintiff makes no charge of fraud or misconduct against his opponent, Mason, and in open court his counsel expressly assert that they do not charge that the alleged fraudulent acts of which the plaintiff complains were committed with the knowledge or consent of the defendant, Mason. The questions determined here are of law only, and no evidence was therefore produced.

¶2 We are met at the threshold by objections to the jurisdiction of this court over the subject-matter.

¶3 The ancient writ of quo warranto has been obsolete both in England and America for centuries. It was a civil writ, the prerogative of the Crown. Upon its falling into disuse, the remedies which it afforded were for a long time thereafter obtained by an information in the nature of quo warranto. This information was originally a criminal process, likewise the prerogative of the Crown, but in later centuries became recognized as a civil writ. This writ in turn fell into practical disuse in America many decades ago and by statutes in most of the states of the Union the writ of quo warranto has been expressly abolished and it has been by statutes generally provided that the remedies once obtainable by these ancient writs should be had only by an ordinary civil action. Such statutes we had in the territory of Oklahoma from its organization until it became a part of the new state. They now appear as sections 458 and 459, Comp. Stats. 1921.

¶4 The Constitution of this state conferred upon the Supreme Court the power to issue, hear, and determine the writ of quo warranto and at the same time it extended into force and effect in the new state the statutes of the territory of Oklahoma above referred to which abolished the writ of quo warranto and provided for the obtaining of the same relief by an ordinary civil action. Both lawyers and jurists in their common parlance are accustomed to referring to proceedings by civil action for the relief formerly obtainable by writ of quo warranto nevertheless as quo warranto proceedings. "The term is used variously to describe proceedings under the common-law writ or under the information in the nature of the writ, or in the United States to describe similar remedies prescribed by the statute." See 32 Cyc., page 1412. We cannot believe that the framers of the Constitution, in giving to the Supreme Court the power to issue, hear, and determine the writ of quo warranto, intended to take us back to the judicial procedure obsolete when Columbus discovered America, for that is where we would go if this constitutional grant of power were strictly and technically interpreted. The Constitution must always be liberally interpreted for the accomplishment of purposes therein reasonably appearing. It must be deemed sufficiently plastic to expand and meet the actual requirements of advanced modern judicial ideas. To give the language of the Constitution such a technical and limited meaning would, in the language of the Supreme Court of the State of Wisconsin, in the case of State v. West Wisconsin R. Co., 34 Wis. 197.

"* * * Take us back for the period of five hundred years or thereabouts to ascertain the class or classes of cases or particular subjects over which jurisdiction was given or intended by the clause of the Constitution under consideration. It requires but a brief study of the history of this branch of the English Law to show the burden assumed by the learned counsel were he to attempt to point out and fix the limits of the jurisdiction thus conferred upon the court; or to show the difficulties by which the court would be surrounded if it were compelled to solve the question and determine the extent of its own powers upon any such view or construction of the constitutional provision. It will be found that the whole subject is so veiled and hidden in the mists and clouds of antiquity that few courts or authors ever essay to give any explanation of it, and that no living lawyer or student, however versed in ancient law, or antiquarian in his legal pursuits and studies, would be competent to unfold the problem or clear up the doubts and uncertainties by which it is on all sides beset. In the first place it will be learned that it is a point beyond the power of human reach or effort to ascertain the time when the writ of quo warranto fell into disuse, and the information became a substitute for it in all cases."

¶5 Similar constitutional provisions granting to the Supreme Court the power to issue the writ of quo warranto have frequently been held not impaired by an act of the Legislature abolishing the writ. Likewise the courts have on frequent occasions held that the grant of the power to issue the writ of quo warranto would be construed to also grant the power to proceed by information in the nature of quo warranto, the theory being that the framers of the Constitution did not intend to move backwards to the technical and cumbersome proceedings of antiquity, but to grant unto the court the power to proceed by the recognized modern method of obtaining the same relief in a less technical and more practical manner. From the same logical reasoning must be deduced the conclusion that our Constitution, in granting to this court the power to issue and determine the writ of quo warranto, confers upon this court the power to entertain jurisdiction of the civil action for the recovery of similar relief, as is authorized by sections 458 and 459, Comp Stats. 1921.

"In American

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