Lattimore, Co. v. Vernor

• Decision Date: 08 March 1930
• Docket Number: Case Number: 21139
• Citation: Lattimore, Co. v. Vernor, 1930 OK 104, 288 P. 463, 142 Okla. 105 (Okla. 1930)
• Parties: LATTIMORE, Co. Atty., v. VERNOR, Dist. Judge.
• Court: Oklahoma Supreme Court

1930 OK 104

288 P. 463

142 Okla. 105

LATTIMORE, Co. Atty., v. VERNOR, Dist. Judge.

Case Number: 21139

Supreme Court of Oklahoma

Decided: March 8, 1930

Syllabus

¶0 1. Prohibition--Office of Writ--Control of Inferior Courts.

Prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction to keep inferior courts and tribunals within the limits and bounds prescribed for them by law, and its use in proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined to the exercise of those powers with which it has been by law intrusted.

2. Same--Scope of Inquiry Upon Application for Writ.

On application for prohibition the only inquiries permitted are whether the inferior court is exercising a judicial power not granted by law, or is attempting to make an excessive and unauthorized application of judicial force in a cause otherwise properly cognizable by it, and consequently, this court will not investigate the merits of the cause before the inferior court.

3. Same--Courts not Clothed with Arbitrary Power.

Arbitrary power does not abide with the courts of Oklahoma.

4. Same--Prohibition of District Judge from Exercise of Unwarranted Power.

When a district judge makes an unwarranted, and therefore unlawful, application of judicial power, he may be and should be prohibited.

5. Grand Jury--Disqualification of County Attorney--Appointment of Special Attorney to Conduct inquiry as to Conduct of County Attorney.

A county attorney is disqualified to appear before a grand jury when said grand jury is investigating the conduct of said county attorney, and the district court has authority, under section 5745, C. O. S. 1921, to declare the disqualification of the county attorney in so far as he is disqualified, and to appoint a county attorney to conduct such inquiry in so far as the county attorney is disqualified, subject to a superintending control by the Supreme Court.

6. County Attorney--Statutory Grounds for Disqualification and Appointment of Special Attorney by Court.

The district courts of this state have the power to appoint a suitable person to perform, for the time being, the duties required by law to be performed by the county attorney upon the following conditions, and none other: (1) When the office of county attorney is vacated; (2) when the county attorney is absent from the court; (3) when the county attorney is unable to attend to the duties of his office; (4) when the county attorney is disqualified to act.

7. Same--"Disqualified to Act."

"Disqualified to act," as used with reference to the disqualification of a county attorney, in its ordinary signification, means some interest in the subject-matter or a relationship to the parties in interest; the disqualification or inability, however, may result from physical causes as well as from interest or relationship.

8. Same--Necessity for Court to Hold Hearing and Make Finding as to Disqualification of County Attorney.

Before the district courts of this state have the power to appoint a suitable person to perform, for the time being, the duties required by law to be performed by the county attorney, a hearing must be had and proof must be offered showing that the county attorney is disqualified, and an order entered upon the journal of said court showing such a hearing has been held, and proof offered, and the court finds from such proof that the county attorney is disqualified to perform, for the time being, the duties, for which the district court then appoints a special or substituted county attorney to perform.

Original action for writ of prohibition by S. H. Lattimore, County Attorney of Muskogee County, against Enloe V. Vernor, District Judge, et al. Writ granted.

S. H. Lattimore, in pro. per.

Enloe V. Vernor, Archibald Bonds, and Fred W. Martin, in pro. per.

SWINDALL, J.

¶1 This is an original proceeding brought in this court by the county attorney of Muskogee county, against Enloe V. Vernor, district judge of the Third Judicial District of the state of Oklahoma, Archibald Bonds, and Fred W. Martin, for writ of prohibition. The county attorney, as petitioner, seeks a writ of prohibition against the respondents and for said writ alleges that on the 10th day of February, 1930, a petition was filed in the district court of Muskogee county for the convening of a grand jury for general investigation purposes, and that respondent, district judge, thereupon ordered such a grand jury. That one of the respondents, as district judge, has by order undertaken to disqualify the petitioner, as county attorney of Muskogee county, and his legally appointed deputies for all purposes connected with the proceedings of said grand jury, and that respondent, Enloe V. Vernon, as district judge, has further repudiated and refused publicly and by letter the assistance of services of the Attorney General of the state of Oklahoma, in connection with said grand jury, but, on the other hand, it is alleged that said district judge has undertaken to control investigations and proceedings of said grand jury by the appointment of attorneys selected by himself to perform the duties vested and imposed upon the legally elected and qualified county attorney of Muskogee county (as well as upon the Attorney General in proper cases), and that in pursuance of said design, without cause or hearing, the said district judge has purported to order the disqualification of S. H. Lattimore, county attorney, and his deputies in all matters aforesaid, and has purported to appoint Archibald Bonds and Fred W. Martin to assume and exercise all powers as public prosecutors and take entire charge of all said proceedings before said grand jury. A copy of the order so made is attached to the petition of respondent, and omitting formal parts, is as follows:

"Now, on this the 27th day of February, 1930, it being made to appear to the court that a grand jury has been called to be empaneled, in and for Muskogee county on March 10, 1930, which, among other things, it will be charged to engage in a full and complete investigation of all county offices and governmental affairs of Muskogee county, including the offices of county commissioners and county attorney and their official acts, with the intention and for the purpose of determining the conduct of said offices by the present incumbents thereof and to ascertain whether or not any such officials have been guilty of any offense, either of omission or commission, violating the laws of the state of Oklahoma, or neglect of duty, misconduct or incompetency in office, sufficient to warrant removal.

"The court is of the opinion, and finds, that the county attorney. S. H. Lattimore, deputies are, and will be throughout said investigation, disqualified to act in their capacities, as county attorney and deputies, respectively, before said grand jury, by reason of personal interest and connection with matters subject of inquiry and investigation, and that it is necessary for this court to exercise its power and authority by the appointment of a suitable person or persons, for all purposes, to perform the duties of county attorney before said grand jury during its deliberations.

"I, therefore, as judge of the district court in and for Muskogee county, Oklahoma, by virtue of the power and authority vested in me as such judge, do designate and appoint Archibald Bonds and Fred W. Martin as county attorney and deputy, respectively, members of the bar in good standing of said Muskogee county, state of Oklahoma, who in the opinion of this court are suitable persons to take entire charge of said grand jury as special county attorney and deputy, to have any and all powers to appear and perform all duties of the county attorney and deputy, in so far as the law makes it the duty of the county attorney and deputies to wait upon, advise, and assist said grand jury in its duties. The said Archibald Bonds and Fred W. Martin to qualify by taking the oath of office as required by law.

"Done in open court this the 27th day of February, 1930.

¶2 Prayer is made that such exercise of such arbitrary power is unauthorized and void; that there is no adequate remedy save by prohibition and that irreparable injury will ensue in this, to wit: That accusations and indictments that may be presented by said grand jury may be invalidated and the purposes of the calling of such grand jury thwarted.

¶3 To this petition the district judge has filed his response, in which he says that 'he is not bound to disclose his reasons in the premises." He says, however, that he "denies every material allegation contained in plaintiff's petition except as may hereinafter be admitted." He admits that: (1) Lattimore is the county attorney of Muskogee county; (2) that a petition was filed on the 10th day of February, 1930, in the district court of Muskogee county, signed by more than 100 taxpayers requesting the district court to call a grand jury for general investigations as authorized by the Constitution and laws of the state; (3) that he as district judge called said grand jury; (4) that the grand jury has general powers to investigate. He, as district judge, denies that he acted "capriciously and arbitrarily and without just cause or a hearing to disqualify the petitioner as county attorney and his legally appointed deputies for all purposes connected with the proceedings of said grand...