Montgomery v. State Election Bd.

• Decision Date: 28 October 1910
• Docket Number: Case Number: 2052
• Citation: Montgomery v. State Election Bd., 27 Okla. 324, 111 P. 447, 1910 OK 301 (Okla. 1910)
• Parties: MONTGOMERY v. STATE ELECTION BOARD et al.
• Court: Oklahoma Supreme Court

1910 OK 301

111 P. 447

27 Okla. 324

MONTGOMERY v. STATE ELECTION BOARD et al.

Case Number: 2052

Supreme Court of Oklahoma

Decided: October 28, 1910

Syllabus

¶0 COURTS--Supreme Court--Original Jurisdiction--Writs of Certiorari. An action was originally instituted in this court by M., a qualified elector and taxpayer in the county of O., and also a member of the county election board of said county, for a writ of certiorari to issue to the State Election Board, and also the county election board of said county, directing said State Election Board to certify to this court a record of all proceedings had with reference to the resignation of P. as a member thereof and the appointment of M. in his stead, and that the pretended appointment of M. be set aside and held for naught; and further that a writ to the county election board of O. county be issued directing said board to certify to this court a record of all proceedings had by S. as a member thereof since September 8, 1910, and that all proceedings had by them be set aside, vacated and held for naught. Held, that this court has not original jurisdiction of such action.

Original Application for Writ of Certiorari.

Application by Hunter Montgomery for a writ of certiorari to the state election board and the county election board of Okfuskee county. Writ quashed, and proceeding dismissed.

Burford & Burford, for plaintiff.

Charles West, Attorney General, and Charles L. Moore, Assistant Attorney General, for defendants.--Citing Homesteaders v. McCombs, 24 Okla. 204.

WILLIAMS, J.

¶1 On October 10, 1910, the plaintiff, as a qualified, elector, property owner and taxpayer in the county of Okfuskee, of this state, and also as a member of the county election board of said county, filed a petition in this court asking for a writ of certiorari to issue to the state election board and the county election board of Okfuskee county directing said state election board to certify to this court a record of all proceedings had with reference to the resignation of J. B. Patterson as a member thereof, and the appointment of H. H. Mosier in his stead, and that the pretended appointment of said Mosier be set aside and held for naught, and that a further writ to the county election board of Okfuskee county be issued directing said board to certify to this court all the proceedings had by A. V. Skelton, a member of said county election board, and the said H. H. Mosier acting as a member thereof, on or since September 8, 1910, and that all the proceedings had by them be set aside, vacated and held for naught. A writ was issued requiring said state election board to so certify a record of its proceedings or to show cause why it should not be so certified. Said board, having made due return to such writ through the Attorney General, has challenged the jurisdiction of this court in this proceeding.

¶2 The case at bar seems to be concluded by that of Homesteaders v. McCombs, Ins. Com'r, 24 Okla. 201, 103 P. 691, wherein it was said:

"The executive department of the government cannot exercise powers belonging to the judicial, except as they are an incident to the administration of the prescribed duties of such department. In re County Com'rs. of Seventh Judicial District, 22 Okla. 435, 98 P. 557. The original jurisdiction of this court extends to a general superintending control over all inferior courts and all commissions and boards created by law. In furtherance of that jurisdiction, it has power to issue writs of mandamus, quo warranto, certiorari, prohibition, and such other remedial writs as may be provided by law."

¶3 On page 209 of 24 Okla. page 694 of 103 Pac., it is further said:

"This court has no jurisdiction, unless the insurance department or commissioner comes within the purview of an inferior court, or commission or board created by law, as contemplated in section 2, art. 7 (Bunn's Ed. § 170), of the Constitution of this state. The insurance commissioner, being an executive officer of the state, charged only with the duty of the execution of all laws in force in the state relating to insurance and insurance companies doing business therein, can exercise neither legislative nor judicial functions, except as the same are merely an incident to the administration of his department. The words 'commissions' and 'boards,' as used in connection with the term 'inferior courts,' mean such commissions or boards as judicial power may be vested in pursuant to section 1, art. 7 (Bunn's Ed. § 169), of the Constitution, and the hearing and determination of matters by commissioners or boards from which appeals may be taken, or to which writs of certiorari, and other like writs, may lie, appears to be the test."

¶4 Section 4, art. 3, of the Constitution of this state provides:

"The Legislature shall enact laws creating an election board (not more than a majority of whose members shall be selected from

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