McCain v. State Election Bd.
Decision Date | 26 June 1930 |
Docket Number | 21465. |
Citation | 289 P. 759,144 Okla. 85,1930 OK 323 |
Parties | McCAIN v. STATE ELECTION BOARD et al. |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
Under the law of the state of Oklahoma, nominating petitions for the office of judge of the court of common pleas of Tulsa county, Okl., should be filed with the secretary of the county election board of Tulsa county, Okl., and not with the state election board of the state of Oklahoma.
Where a judicial construction has been placed upon the language of a statute for a long period of time, so that there has been abundant opportunity for the law making power to give further expression to its will, its failure to do so amounts to a legislative approval and ratification of the construction placed upon the statute by the courts.
Syllabus by the Court.
The construction which has been placed upon a statute by the officer or governmental department charged with the carrying out of the provisions of the law is to be accorded due consideration by the courts in construing the statute.
Where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.
Additional Syllabus by Editorial Staff.
Appeal from District Court, Oklahoma County; Sam Hooker, Judge.
Action by Barns McCain against the State Election Board and others. Judgment of dismissal, and plaintiff appeals.
Affirmed.
G. E Croom, of Tulsa, for plaintiff in error.
J Berry King, Atty. Gen., Randell S. Cobb, Asst. Atty. Gen and Davidson & Williams, L. M. Poe, Joe T. Dewberry, and Joe Simpson, all of Tulsa, for defendants in error.
In this opinion the parties, plaintiff and defendants, will be referred to as they appeared in the court below.
This action was commenced by plaintiff, Barns McCain, against the defendants, the state election board of the state of Oklahoma, and Cleon A. Summers, as its chairman, and John E. Luttrell, as its secretary, constituting the state election board of the state of Oklahoma, in the district court of Oklahoma county, Okl., in which action the plaintiff sought a writ of mandamus against the defendants requiring defendants to file plaintiff's nominating petition for the Democratic nomination to the office of judge of the court of common pleas of Tulsa county, Okl., and to place his name upon the official state ballots.
The petition, after setting forth the general qualifications of the plaintiff for the office of judge of the court of common pleas of Tulsa county, alleges that on June 7, 1930, and within the time required by law, the plaintiff presented to defendants his petition or application requesting that his name be placed upon the state ballots as a candidate for the democratic nomination for the office of judge of the court of common pleas of Tulsa county, to be voted upon at the primary election to be held on the last Tuesday in July, 1930, and requested that defendants file such petition or application, and that defendants unlawfully refused so to do. That there is no appeal from the decision and action of defendants constituting said state election board, and that the plaintiff is therefore without adequate remedy at law. Plaintiff prays that a writ of mandamus be granted requiring defendants to receive and file his petition and application to have his name placed upon the official state ballot as a democratic candidate for judge of the court of common pleas of Tulsa county, to be used in the state-wide primary election to be held the last Tuesday in July, 1930, or to appear before said disstrict court on a day certain to show cause why such defendants fail or refuse so to do. To the petition is attached a copy of plaintiff's said application to have his name placed upon said state ballot.
Upon the filing of said petition in said district court, Hon. Sam Hooker, judge of said court, on the 11th day of June, 1930, issued an alternative writ of mandamus in said cause requiring the defendants to file the petition or application of plaintiff to have his name placed upon the official state ballot as a Democratic candidate for the office of judge of the court of comon pleas of Tulsa county, Okl., division No. 2, as prayed for by the plaintiff, to be voted upon in the state-wide primary election to be held on the last Tuesday of July, 1930, in the state of Oklahoma, or to appear before said court and show cause why they failed and neglected to do so on the 16th day of June, 1930, and to have then and there said writ and make due return of execution of the same.
The defendants on the 16th day of June made return of said writ and filed their response to the same in said district court, alleging that, under the provisions of section 6101, C. O. S. 1921, the plaintiff was required to file his nominating petition for the office of judge of the court of common pleas of Tulsa county, division No. 2, with the secretary of the county election board of Tulsa county, Okl., and not with the state election board, and that the laws of the state of Oklahoma do not enjoin upon respondents the duty of accepting or filing said nominating petitions.
The respondents further allege that the court of common pleas of Tulsa county, Okl., was created by the Legislature of the state of Oklahoma by Senate Bill No. 113, passed by the 1923 session of said Legislature, as shown by chapter 51 of the 1923 Session Laws of the State of Oklahoma; that said bill was approved by the Governor of the State of Oklahoma, on the 27th day of February, 1923, and became immediately effective; that under the provisions of said law the court of common pleas of Tulsa county, Okl., has jurisdiction coextensive of the county in which the court exists, and that the judges of said court shall be elected by the electors of the county at large for a term of four years; that the qualifications of the judges of said court shall be the same as those required of the judges of the county courts of the state; that under the act creating the said court it was provided that the Governor of the state should appoint suitable persons having the necessary qualifications as judges of said court until the first election thereafter at which said judges could be elected; that the first election thereafter came in the year 1926, and that numerous persons, some thirty-six in number, desired to file for the nomination of the various political parties, for judges of said court; that they requested the state election board of the state of Oklahoma to advise them whether they should file for said offices with the county election board of Tulsa county, Okl., or the state election board of the state of Oklahoma, and that the state election board construed said section 6101, supra, to require the filings for said offices to be with the county election board of Tulsa county, Okl., and so advised the prospective candidates at that time, and that at the primary election, held in Tulsa county in the year 1926, said candidates filed their nominating petitions for judge of the court of common pleas of Tulsa county, with the county election board of said county, and did not file their nominating petitions with the state election board of Oklahoma; that said construction of section 6101, supra, by the officers charged with the administration of said law at that time was a contemporaneous construction of the law by the officers charged with the administration thereof, and that said construction was acquiesced in by all the candidates for said offices at the primary election of 1926, and the judges elected at that time, by the filing with the county election board of Tulsa county, took office and served as judges of the court of common pleas of Tulsa county continuously since they took office under such election.
The cause was tried in the district court on the 16th day of June, 1930, at which time the plaintiff filed his motion for judgment on the pleadings. The court took the cause under advisement, and on June 21, 1930, overruled the motion of plaintiff for judgment on the pleadings, and entered judgment dismissing plaintiff's petition with prejudice at the cost of plaintiff, to which plaintiff excepted. Motion for new trial was filed by the plaintiff in due time, and it was overruled by the court, to which the...
To continue reading
Request your trial