Maben v. Rosser

• Decision Date: 28 July 1909
• Docket Number: Case Number: 808
• Citation: 24 Okla. 588,1909 OK 211,103 P. 674
• Parties: MABEN v. ROSSER et al.
• Court: Oklahoma Supreme Court

1909 OK 211

103 P. 674

24 Okla. 588

MABEN v. ROSSER et al.

Case Number: 808

Supreme Court of Oklahoma

Decided: July 28, 1909

Syllabus

¶1 1. JUDGES--Impeachment--District Judges not Subject. Judges of the district courts are not subject to impeachment under section 1 of article 8 (section 199, Bunn's Ed.) of the Constitution.

2. OFFICERS--Removal of State Officers--Proceedings. All state officers elected by the people or appointed by the Governor, whose removal has not otherwise been provided for by the Constitution, or exclusive provision been made therefor by statute enacted since the admission of the state, may be removed under the provisions of article 4, c. 68, Wilson's Rev. & Ann. St. 1903.

3. JUDGES--Proceedings to Remove--Nature. A proceeding under the provisions of article 4, c. 68, Wilson's Rev. & Ann. St. 1903. for the removal of a district judge, is not a criminal proceeding, but is a special proceeding.

4. JUDGES--Proceedings to Remove--Suspension. Pending a final hearing of a proceeding under such statute to remove a district judge, the court in which such cause is pending may suspend the accused from the exercise of the functions of his office.

5. WORD AND PHRASES--"including." The word "including" is the participle from the verb "include," which by Webster's Dictionary is defined in its primary sense to mean to confine within, to hold, to contain, to shut up, to inclose; by the Century Dictionary, to comprise as a part. The word has also been defined as having an accumulative sense and as classing that which follows with that which has gone before.

Original application by William B. Maben for a writ of prohibition to be directed to Malcolm E. Rosser, Acting Judge of the Tenth Judicial District, Charles West, Attorney General of the State, and Fred S. Caldwell, Counsel to the Governor. Writ denied.

This is an original action brought in this court by William B. Maben, as plaintiff, against Malcolm E. Rosser, acting judge of the Tenth judicial district, Charles West, Attorney General of the state, and Fred S. Caldwell, counsel to the Governor. Plaintiff by his petition seeks to obtain a writ of prohibition, prohibiting and restraining the defendants from proceeding in the prosecution of a certain action pending in the district court of Pottawatomie county. The facts alleged in the petition, in so far as they are necessary to the consideration of this case, may be epitomized as follows: On the 26th day of April, 1909, the grand jury of Pottawatomie county returned an accusation against plaintiff, charging him with misconduct in the office of judge of the Tenth judicial district, and praying that he be removed therefrom for such misconduct. Thereafter the Attorney General made application to defendant Malcolm E. Rosser, acting judge of the Tenth judicial district, for an order suspending plaintiff until the final hearing upon the accusation returned by the grand jury. Plaintiff appeared and filed his demurrer to the accusation returned by the grand jury and to the application for suspension, upon the ground that the court was without jurisdiction to hear and determine a proceeding to remove a judge of the district court. The demurrer was overruled by the court, and the defendant Judge Rosser was about to enter an order suspending plaintiff; but, before doing so, he gave to the plaintiff an opportunity to present his petition to this court for a writ of prohibition.

T. G. Cutlip, E. A. Foster, and W. S. Pendleton, for plaintiff.

Charles West, Atty. Gen., and Fred S. Caldwell (B. B. Blakeney, of counsel), for defendants.

HAYES, J.

¶1 Counsel for defendants correctly state in their brief that this case presents the following three questions: First. Is a judge of a district court subject to impeachment under the provisions of the Constitution of the state? Second. If a judge of a district court is not impeachable, can he, under the laws of the state, be removed from office in a proceeding instituted by accusation in the district court of the county where such officer resides? Third. If a district court has jurisdiction to hear, try, and determine an accusation to remove a judge of the district court, can he, pending a final determination of such accusation, enter an order suspending the accused from the functions of his office? We shall consider these questions in the order mentioned.

1. Section 1, art. 8, of the Constitution (section 199, Bunn's Ed.) provides:

"The Governor and other elective state officers, including the justices of the Supreme Court, shall be liable and subject to impeachment for willful neglect of duty, corruption in office, habitual drunkenness, incompetency, or any offense involving moral turpitude committed while in office."

¶2 Plaintiff contends that, by virtue of this section, all state officers, regardless of class, kind, or department to which they belong, who are elected, are subject to removal by impeachment for the causes enumerated therein. If this contention of plaintiff be correct, district judges are subject to impeachment for corruption in office, which is the charge made against him as a ground for his removal. Under this construction of the section, for which plaintiff contends, members of the House of Representatives and of the Senate would also be subject to impeachment; but section 30, art. 5 (section 101, Bunn's Ed.), in part provides:

"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member."

¶3 And section 19, art. 5 (section 89, Bunn's Ed.) of the Constitution in part provides:

"A member of the Legislature expelled for corruption shall not thereafter be eligible to membership in either House. Punishment for contempt or disorderly conduct, or for any other cause, shall not bar an indictment for the same offense."

¶4 These sections of the Constitution provide a mode for the removal of members of the Legislature entirely different from the mode prescribed by section 1, art. 8, supra, for the removal of officers therein designated. A member of the House of Representatives, under section 19, is charged and tried by the House of which he is a member, and a member of the Senate is charged and tried by the Senate; but under article 8 of the Constitution, providing for removal by impeachment, charges are preferred by the House of Representatives, and the trial and removal, if conviction is had, are by the Senate. If plaintiff's construction of section 1, art. 8, is correct, then it is in conflict with section 30, art. 5, supra. These sections are equally mandatory, and are parts of the same instrument, proposed by the same framers, and adopted by the people at the same time, and should be construed so as to permit both to stand and give force and effect to each, if they are susceptible of such construction. The intention of the framers of the Constitution and the people in adopting it, by the use of the general terms "other elective state officers," is to be ascertained by reading this expression in connection with the context and as limited by the words with which they are associated. The rule and doctrine of ejusdem generis furnishes us, we think, an aid for the construction of these terms and a means of arriving at the legislative intent. This familiar rule of construction has been well stated in the syllabus to Nichols v. State, 127 Ind. 406, 26 N.E. 839, in the following language:

"The rule is that where words of a particular description in a statute are followed by general words that are not so specific and limited, unless there be a clear manifestation of a contrary purpose, the general words are to be construed as applicable to persons or things, or cases, of like kind to those designated by the particular words."

¶5 It is true that this rule of construction must yield to that other and always superior canon of construction which declares that, in construing a statute the primary object shall be the intention of the lawmakers, and, when any rule of construction defeats that intention, it must be abandoned. Rules of construction are but aids to the accomplishment of this primary object. In this case language has been used which, it is contended, is susceptible of two constructions. One of these constructions results in conflict with other parts of the same instrument. This in itself is an indication that the meaning derived by such construction was not the intention of the legislators. If the general words "other elective officers" be construed in connection with the specific terms which precede them, and be held to include only such officers as are of the class and kind of Governor, to wit, executive officers, the meaning of this section is harmonized with the other provisions of the Constitution. This principle of statutory construction is everywhere recognized and acted upon by the courts, with respect both to civil and to penal statutes. Its application to the section of the Constitution under consideration is not opposed by the language of the section and results in giving to it a meaning and effect that harmonizes it with section 30, art. 5.

¶6 In State v. Walsh, 43 Minn. 444, 45 N.W. 721, the statute under consideration made it criminal to displace, remove, or destroy "a rail, sleeper, switch, bridge, viaduct, culvert, embankment or structure appertaining to or connected with a railway." The court held, applying the rule of ejusdem generis, that the general term "structure" did not include a fence inclosing a strip of land occupied by a railroad company for its railway.

¶7 In Chegaray v. Mayor, 13 N.Y. 220, the statute exempted from taxation "every building erected for the use of a college, incorporated academy, or other seminary of learning." It was held that "other seminary of learning" did not include a school for girls which was unincorporated; that these general terms were to be construed in connection with the preceding words, "colleges and...