Lawhorn v. Robertson, A-11921

• Decision Date: 10 February 1954
• Docket Number: No. A-11921,A-11921
• Citation: 266 P.2d 1008
• Parties: LAWHORN et al. v. ROBERTSON, County Judge.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1008

266 P.2d 1008

LAWHORN et al. v. ROBERTSON, County Judge.

No. A-11921.

Criminal Court of Appeals of Oklahoma.

Feb. 10, 1954.

Syllabus by the Court

1. The first paragraph of Section 2, Chap. 28, S.L. 1907-1908, reading, 'The criminal court of appeals shall have exclusive appellate jurisdiction in all criminal cases appealed from county and district courts in this State,' and continued and enlarged as paragraph 7, Art. II of Chap. 14 S.L. 1909 (now Title 20 of Oklahoma Statutes 1951 § 40), but the remaining provisions of which said Sec. 2 of the 1907-1908 session laws were omitted from the 1909 Act and the 1910 and all subsequent Codes, Held that the omitted provisions of Sec. 2 of the first Act were incompatible and repugnant to the first sentence of said section, and to Section 2 of Article 7, Constitution of Oklahoma, and that Section 24 of House Bill 33 of session laws 1909 effectively repealed said omitted provisions of said Section 2 of Chap. 28 of S.L. 1907-1908.

2. The Criminal Court of Appeals being vested with exclusive jurisdiction in criminal appeals may in proper cases before it, determine the constitutionality of criminal statutes involved.

3. The writ of prohibition is that process by which an appellate court prevents an inferior court from usurping or exercising unauthorized jurisdiction.

4. Writ of 'prohibition' may not issue to prevent inferior court from erroneously exercising jurisdiction, but only to prohibit proceedings as to which inferior tribunal is wholly without jurisdiction.

5. The prohibition in Oklahoma Constitution, Art. 7, § 12, against the exercise by the county court of jurisdiction in actions against officers for misconduct in office, includes all actions against such officers for misconduct, and jurisdiction over such proceedings is in the district court, and this includes the charge of extortion. Tit. 21 O.S.1951 §§ 1484, 1481.

Fred W. Martin, E. J. Broaddus, Wagoner, Harold Shoemake, Muskogee, for petitioners.

Thomas J. McGoldrick, County Atty., Wagoner County, Wagoner, H. Tom Kight, Jr., Claremore, for respondent.

POWELL, Presiding Judge.

Fred Lawhorn and E. Q. Flowers filed herein their application, praying that this court issue a writ of prohibition directed to the County Judge of Wagoner county, prohibiting him from exercising jurisdiction and authority and applying judicial force, which it is alleged that he is attempting contrary to the provisions of Section 12 of Article 7 of the Constitution of the State of Oklahoma.

There was recited in the petition the proper presentation to the County Judge of the issues here raised and adverse rulings by the court. Also it was alleged that petitioners were without adequate remedy at law, and that a remedy by appeal or by other method, except by prohibition in this court, was inadequate and insufficient in that the same would deprive petitioners of having the matter speedily determined in a court having jurisdiction thereof.

At the time the petition was filed with this court, respondent ws represented by the county attorney of Wagoner county, and oral argument was heard. The petition was supported by a brief shown to have been served on respondent several days prior to the filing, but respondent was granted time in which to file brief and petitioners time in which to reply thereto. This court has now had the benefit of the views of the parties.

The charging part of the information shown to have been filed and now pending in the county court of Wagoner county reads:

'Elton Q. Flowers and Fred Lawhorn did, in Wagoner County and in the State of Oklahoma, on or about the 18th day of December in the year of our Lord One Thousand Nine Hundred Fifty, and anterior to the presentment hereof, commit the crime of Extortion in the manner and form as follows, to-wit:

'That the defendants, Elton Q. Flowers, being the duly elected, qualified and acting Justice of the Peace in and for Wagoner County, Oklahoma, and Fred Lawhorn, a duly appointed and acting State Game and Fish Ranger, and each of them, as such officers, while acting in concert each with the other, did, on the day, month and year aforesaid, and in the County and State aforesaid, then and there extort and obtain property, to-wit: $3.00 of good and lawful money of the United States of America, from Alex A. Stark, with consent of the said Alex A. Stark, which consent was induced, procured and obtained by them, the said defendants by means, and by use, and under color of official right, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State.'

At the time of the hearing in this court it was developed by petitioners, and in effect agreed by the parties, that at the time mentioned in the information Elton Q. Flowers was the duly elected, qualified and acting justice of the peace, and Fred Lawhorn was the duly appointed, qualified and acting game ranger of Wagoner county.

It was the thesis of counsel for petitioner, quoting their statement presented, that 'the allegations of the information are that the justice of the peace, and the ranger, 'as officers', in concert with each other, did extort $3 from one Alex A. Stark, 'by means, and by use, and under color of official right.' It is the position of the petitioners herein that these allegations are allegations of 'misconduct in office', and that therefore, under the provisions of Section 12 of Article 7 of the Constitution of Oklahoma, the County Court is deprived of jurisdiction to hear said cause.' In short, it is urged that the action should have been filed in the district court.

The respondent, County Judge of Wagoner county, seeks first to avoid a determination by this court of the proposition of petitioners by denying the authority of this court to construe the Constitution of this State. He presents the following:

'1. That the answer to the proposition contained in the application for a writ of prohibition in the instant case can only be determined by construing the Constitution of the State.

'2. That the Supreme Court, being vested with superintending control over all inferior courts, is the proper and only court to make such decisions.

'3. If the Criminal Court of Appeals did have the power to issue the writ of prohibition in the instant case, it would be bound by its own decisions to deny the writ.'

The Criminal Court of Appeals of Oklahoma was provided for in the State Constitution, but was brought into being, Chapter 28, S.L. 1907-1908, and perpetuated, Chapter 14, S.L. 1909, by the State Legislature.

Section 1 of Article 7 of the Oklahoma Constitution reads:

'The judicial power of this State shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, District Courts, County Courts, Courts of Justices of the Peace, Municipal Courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law.'

The pertinent portion of Section 2 of Article 7 necessary to determine the issue raised, reads:

'The appellate jurisdiction of the Supreme Court shall be co-extensive with the State, and shall extend to all civil cases at law and in equity, and to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law.' (Emphasis supplied.)

The Constitution came into force November 16, 1907. The first legislature thereafter, Chapter 28, S.L. 1907-08, under the constitutional authority quoted enacted a bill entitled: 'An Act creating a criminal court of appeals, defining the jurisdiction of said court.' The Act provides, in part:

'Section 1. There is hereby created a criminal court of appeals, which shall consist of three members, any two of whom shall constitute a quorum, and the concurrence of two judges shall be necessary to a decision of such court. The members of said court shall have the same qualifications as justices of the supreme court, and each of whom shall receive a salary of three thousand five hundred dollars per annum.

'Sec. 2. The criminal court of appeals shall have exclusive appellate jurisdiction in all criminal causes appealed from county and district Courts in this State. (Emphasis supplied.) If in any cause appealed to the criminal court of appeals, in which the construction of the Constitution of this State, or of the United States, or any Act of Congress is brought in question, the said criminal court of appeals shall certify to the supreme court of the State, the question involving the construction of the Constitution of this State, or of the United States, or any Act of Congress, for the final determination of the question so certified. Thereupon all further proceedings in said cause in the criminal court of appeals shall await the decision of the supreme court upon such question. Upon the final decision of such question by the supreme court, said supreme court shall certify its decision on such question to the criminal court of appeals, and said decision of such question by the supreme court shall govern said criminal court of appeals. The supreme court shall give precedence to all questions certified to it by the criminal court of appeals under this section.

'Sec. 3. The appellate and original jurisdiction of the criminal court of appeals shall be invoked in the manner prescribed by law.

* * *

* * *

'Sec. 10. Until otherwise provided by law, appeals in all criminal causes from county and district courts to the criminal court of appeals shall be taken in the same manner as is now provided by law for appeals in criminal causes, from county and district courts to the supreme court.

* * *

* * *

'Sec. 12. Said court, and judges thereof, shall have the power to issue writs of habeas corpus, and under such regulations as provided by law, issue such writs as may be necessary to enforce its own jurisdiction.

'Sec. 13. Said court shall have power, upon affidavit or otherwise, to ascertain such...