Nichols v. Levy

• Decision Date: 26 May 1931
• Docket Number: Case Number: 22173
• Citation: 1 P.2d 766,151 Okla. 245,1931 OK 292
• Parties: NICHOLS et al. v. LEVY.
• Court: Oklahoma Supreme Court

1931 OK 292

1 P.2d 766

151 Okla. 245

NICHOLS et al. v. LEVY.

Case Number: 22173

Supreme Court of Oklahoma

Decided: May 26, 1931

Syllabus

¶0 1. Judges--Act Providing for Election of Two County Judges Held Unconstitutional.

House Bill No. 131, approved by the Governor of the state of Oklahoma on March 5, 1931, which provides for the election of two county judges in counties having a population of more than 220,000, as shown by the last preceding regular federal decennial census, is in violation of the provisions of the Constitution of Oklahoma and is void.

2. Prohibition--Remedy to Prevent Person Acting as County Judge Under Unconstitutional Statute.

When an individual attempts to act as county judge under the authority of an unconstitutional legislative enactment providing for two county judges, and asserts his authority by virtue of that act, upon proper application and showing, a writ of prohibition will issue prohibiting him from acting in such official capacity.

Original proceeding in Supreme Court for a writ of prohibition by G. A. Nichols et al. against D. S. Levy. Peremptory writ ordered.

Shirk, Danner & Phelps, Chas. E. Earnheart, and Samuel O. Neff, for plaintiffs.

Lewis Morris, Co. Atty., B. C. Logsdon, Asst. Co. Atty., Clay M. Roper, and Willingham & Fariss, for defendant.

ANDREWS, J.

¶1 This is an original proceeding in this court for a writ of prohibition against the defendant to prohibit him from acting as county judge of Oklahoma county. It is alleged and admitted that the defendant is attempting to act as county judge of Oklahoma county under the authority of House Bill No. 131 of the Thirteenth Legislature. The defendant contends that when section 11, art. 7, of the Constitution is read and construed in connection with section 2, art. 17, of the Constitution, the legislative enactment in question is valid and constitutional. The real issue, as stated by the defendant, is, "Does our Constitution prohibit the Legislature from providing for more than one judge for the county court regardless of the size of the county or the amount of court work?"

¶2 The defendant presents four contentions as follows:

"1. Our state Constitution, so far as it relates to the legislative department, is not a grant of enumerated powers to the state government, but is a limitation thereon, and that department possesses all the legislative powers not prohibited or restricted by the provisions of the Constitution. Burks v. Walker, 25 Okla. 353, 355, 109 P. 544.

"2. 'A restriction or limitation upon the power of the Legislature, on any subject of legislation, will not be presumed or implied, unless from the entire instrument it appears that it was so intended.' State ex rel. v. Hooker, 22 Okla. 712, 98 P. 964.

"3. 'It is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts are to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.' Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87, 128, 3 L. Ed. 162; Anderson v. Ritterbusch, 22 Okla. 761, 98 P. 1002. See, also, Rakowski v. Wagoner, 24 Okla. 282, 103 P. 632; McCord v. State, 2 Okla. Crim. 214, 101 P. 280; Stout v. State ex rel. Caldwell, 36 Okla. 744, 130 P. 553.

"4. Two constitutional provisions relating to the same subject-matter must, if possible, be so construed as to give effect to every part."

¶3 The defendant contends that under section 2, art. 17, supra, the Legislature has express power to make changes in county offices unless in conflict with section 11, art. 7, supra, and calls attention to the abolishment of the office of register of deeds by the consolidation of the duties of that office with those of the county clerk (chapter 181, Session Laws 1913), the consolidation of the duties of the clerk of the county court and clerk of the district court in a court clerk (chapter 161, Session Laws 1913), additional duties imposed upon the county court in the care of delinquent and dependent children, and service upon the excise board. The power to increase the duties has been sustained by the decision of this court in Anderson v. Ritterbusch, 22 Okla. 761, 98 P. 1002.

¶4 The defendant contends that "there is nothing in the nature of the county court or in the office of county judge, as defined by the Constitution, which inhibits the idea of more than one judge" and calls attention to the fact that "district courts have their plural judges to meet the exigencies of court business and such plurality has been upheld by this court."

¶5 The defendant states the rule of construction to be:

"When words and phrases are employed in one part of a statute or written Constitution in a plain and manifest sense, they are to receive the same interpretation when used in every other part, unless it manifestly appears from the context, or otherwise, that a different meaning was intended to be applied to them. Walton v. Donnelly, 83 Okla. 233, 201 P. 367."

¶6 He calls attention to the fact that "a," "the," "he," and "his" are used in precisely the same manner in sections 9 and 11, art. 7, supra.

¶7 By virtue of section 1, art. 7, of the Constitution, the judicial power of this state is vested in the Senate, sitting as a court of impeachment, certain courts therein named, "and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law." The jurisdiction of the Supreme Court is fixed by section 2, art. 7, and there is no provision therein for the changing thereof, except as to criminal cases when a Criminal Court of Appeals "shall be established by law." By section 3, art. 7, of the Constitution, it is provided that the Supreme Court shall consist of five Justices "until the number shall be changed by law;" the state shall be divided into five Supreme Court judicial districts "until the Legislature shall change the number of members of the court," and candidates for Justices of the Supreme Court shall be nominated "in the manner provided by law." The manner of the election of a Chief Justice is prescribed by section 6, art. 7, of the Constitution, and "thereafter the Chief Justice shall be elected in the manner provided by law." The manner of invoking the appellate and original jurisdiction of the Supreme Court is prescribed by section 8, art. 7, "until the Legislature shall otherwise provide." It is clear that provision is made throughout those sections for certain legislative changes in the constitutional provisions. Similar provisions for changes with reference to district judges appear. By section 9, art. 7, the state shall be divided into 21 judicial districts "until otherwise provided by law." The original jurisdiction of district courts, by section 10, art. 7, may be changed "by law" except as therein limited, and the appellate jurisdiction of district courts may be changed "by law" except as therein limited. By that section the district courts, "or any judge thereof," shall have power to issue certain writs.

¶8 Section 11, art. 7, supra, provides for the establishment in each county of "a county court;" that there shall be elected in each county "a county judge" who shall hold "his" office until the time fixed therein, and that thereafter the term of office of "the county judge" shall be two years and that "he" shall be elected at each biennial general election. The qualifications of "the county judge" are prescribed. "The county judge" shall be "judge of the county court." Nowhere is there any provision therein for the changing of any of those constitutional provisions for the next section, section 12, art. 7, provides for original jurisdiction of the county court "until otherwise provided by law" under the limitations therein contained and for the appellate jurisdiction "as may be provided by law." While section 10, Id., provides that the district courts "or any judge thereof" shall have power to issue writs, section 12, Id., provides that the county court "or judge thereof" shall have power to issue writs. Section 9, art. 7, Id., provides that, in the event "any judge" shall be disqualified, a judge pro tempore may be agreed upon, while section 12, art. 7, Id., provides that when "the county judge" is disqualified, a judge pro tempore may be selected. The appellate jurisdiction of the county court is prescribed by section 14, art. 7, Id., "until otherwise provided by law." Appeals in probate matters in the county court to the district court are provided by section 16, art. 7, Id., "until otherwise provided by law." Section 18, art. 7, Id., provides for the jurisdiction of the justices of the peace "until otherwise provided by law."

¶9 Section 9, art. 7, Id., authorizes the Chief Justice to designate another district judge to hold any term of court in a district in lieu of the district judge elected therein; to appoint any district judge of the state to hold court in any district court, and to designate some other district judge to try cases in which the district judge elected shall be disqualified and no judge pro tempore shall have been elected. It further provides that two or more district judges may sit separately in any district at the same time. Section 11, art. 7, Id., contains none of those provisions. Certainly there is as much reason for such provisions with reference to county judges as there is for them with reference to district judges and the fact that those provisions were not included in section 11, Id., must be given some effect.

¶10 An examination of article 7, Id., entitled "Judicial," discloses that the makers of the Constitution repeatedly provided for changes in certain of the provisions thereof by law, but nowhere therein does it appear that there was any provision made for increasing the number of county judges in any county by law. It seems that a constitutional convention would not in terms...