Munroe v. McNeill

• Decision Date: 22 March 1927
• Docket Number: 18130.
• Citation: 255 P. 150,122 Okla. 297,1927 OK 71
• Parties: MUNROE v. McNEILL.
• Court: Oklahoma Supreme Court

255 P. 150

122 Okla. 297, 1927 OK 71

MUNROE v. McNEILL.

No. 18130.

Supreme Court of Oklahoma

March 22, 1927

Rehearing Denied April 19, 1927.

Syllabus by the Court.

It is only where the act of the Legislature is clear, palpable, and plainly inconsistent with the terms and provisions of the Constitution that the courts will interfere and declare such act invalid and void.

Section 9, art. 7, of the Constitution, does not prohibit the Legislature from making reasonable provisions for the election of district judges by all the electors of the district from different counties of the same district.

An act of the Legislature providing for an increase of district judges in a particular district, and prescribing their manner of nomination and election, is a general law, and not in conflict with the Constitution.

Original action in the nature of a quo warranto by Thomas I. Munroe against Edwin R. McNeill to quiet title to the office of district judge of the Twenty-First judicial district. Petition denied.

Tomerlin & Chandler, of Oklahoma City, for plaintiff.

N. E McNeill, of Tulsa, and McCollum & McCollum and Thurman S Hurst, all of Pawnee, for defendant.

LESTER J.

This is an original action instituted in this court by the plaintiff in the nature of quo warranto to quiet title to the office of the district judge of the Twenty-First judicial district said district being composed of Tulsa and Pawnee counties.

The facts in this case are undisputed. It is the manner provided by the Legislature for the election of judges in said district that is in constitutional dispute.

The statute under which the district judges of the Twenty-First judicial district are nominated and elected is to be found in section 3084, C. O. S. 1921, and reads as follows:

"The said 21st judicial district as now constituted, is hereby divided into two nominating districts and Pawnee county shall constitute one of said nominating districts and Tulsa county shall constitute the other. In the primary election to be held in August, 1922, and each four years thereafter, the political parties or legal petitioners in said nominating district composed of Pawnee county shall each nominate one candidate for said office of district judge and each candidate for said office so nominated by and in said nominating district shall be a resident of said nominating district. In the same primary election and each four years thereafter, the political parties or legal petitioners in said nominating district composed of Tulsa county shall each nominate three candidates for said office of district judge and each candidate for said office so nominated by and in said nominating district shall be a resident of said nominating district. In the general election following the candidates nominated in each nominating district shall be voted upon by the qualified electors of the entire judicial district; each elector shall be permitted to vote for only one candidate from the nominating district composed of Pawnee county and three candidates from the nominating district composed of Tulsa county, and the candidate from Pawnee county who shall receive the largest vote in the judicial district shall be declared elected and the three candidates from Tulsa county who shall receive the largest vote in the judicial district shall each be declared elected."

The provisions of the above-quoted statute were followed by the candidates of the two major political parties in the primary and general election held in 1926.

The defendant, Edwin R. McNeill, candidate for the office of district judge, was unopposed by any candidate from Pawnee county in the general election held on November 2, 1926.

The election officers, charged with the duty of preparing and furnishing ballots to the voters of said district, submitted to said voters at the general election on November 2, 1926, ballots in the following form, as relating to the offices of district judges of said district:

For District Judge	For District Judge
District No. Twenty-one	District No. Twenty-one
Four (4) Judges to be	Four (4) Judges to be
elected. (Vote for Three)	elected. (Vote for Three)
From Tulsa Co.	From Tulsa Co.
[ ] Luther James	[ ] W. L. Coffey
[ ] Thomas I. Munroe	[ ] A. E. Williams
[ ] Robert D. Hudson	[ ] John Lardner
--------
(Vote for one from Pawnee Co.)
[ ] Edwin R. McNeill

It is admitted that the various candidates of the two major parties received the following number of votes in the two counties composing said district:

District No. 21.	Pawnee.	Tulsa.	Totals.
Luther James (D)	1,897	12,078	13,975
Edwin R. McNeill (D)	2,565	9,189	11,754
Robert D. Hudson (D)	1,726	11,702	13,428
Thomas I. Munroe (D)	1,810	11,326	13,136
W. L. Coffey (R)	2,164	10,559	12,723
A. E. Williams (R)	2,066	10,009	12,075
John Lardner (R)	2,269	11,081	13,350

The plaintiff, who resides in Tulsa county, on account of having received more votes in the general election than the defendant who resides in Pawnee county, claims that he is thereby entitled to the office of district judge in preference to the defendant who is now holding the same by virtue of an election certificate issued to him by the election board.

The issues thus formed under the admitted facts at once raise the constitutionality of the act of the Legislature in providing for the manner of nominating and electing district judges in said district.

In entering upon the discussion of this case, we think that the clear and succinct statements made by Cooley in his admirable work on Constitutional Limitations are germane and proper:

"It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. The legislative and judicial are co-ordinate departments of the government, of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by that other of power which, by the Constitution, is not conferred upon it. The Constitution apportions the powers of government, but it does not make any one of the three departments subordinate to another, when exercising the trust committed to it. The courts may declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the constitution as the paramount law, whenever a legislative enactment comes in conflict with it. But the courts sit, not to review or revise the legislative action, but to enforce the legislative will; and it is only where they find that the Legislature has failed to keep within its constitutional limits, that they are at liberty to disregard its action; and in doing so, they only do what every private citizen may do in respect to the mandates of the courts when the judges assume to act and to render judgments or decrees without jurisdiction.

In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the Legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law."

It becomes the duty of this court to inquire as to whether or not the act of the Legislature, in providing the manner of electing judges in said district, is forbidden by the Constitution of this state. If so, it must then fail. If not, it should then receive judicial sanction.

Section 9, art. 7, of the Constitution, provides:

"Until otherwise provided by law, the state shall be divided into twenty-one judicial districts and the qualified electors in each of the said districts shall elect a judge of the district court as provided herein, except in the Thirteenth judicial district two judges shall be elected. Such judge shall be a citizen of the United States, and shall have been a resident of the territory embraced within the state for two years, and of the territory comprising his district at least one year, prior to his election; and he shall have been a lawyer licensed by some court of record, or shall have been a judge of some court of record, or both such lawyer and judge, for four years next preceding his election, and shall reside in his district during his term of office."

This provision of the Constitution left it permissible for the Legislature to provide by law for a change in the number of judicial districts. It provides that qualified electors should elect a judge in such district; that such judge should be citizen of the United States; a resident of the territory embraced within the state for two years, and of the territory comprising his district for at least one year, prior to his election, and for other qualifications not here necessary to discuss.

The framers of the Constitution, in providing "until otherwise provided by law the state shall be divided into twenty-one judicial districts," realized that it would be a wise policy to leave it open to the legislative department of the state as to any future change...