Rose v. Arnold

• Decision Date: 10 August 1938
• Docket Number: 28718.
• Citation: Rose v. Arnold, 82 P.2d 293, 1938 OK 445, 183 Okla. 286 (Okla. 1938)
• Parties: ROSE et al. v. ARNOLD, Judge, et al.
• Court: Oklahoma Supreme Court

82 P.2d 293

183 Okla. 286, 1938 OK 445

ROSE et al. v. ARNOLD, Judge, et al.

No. 28718.

Supreme Court of Oklahoma

August 10, 1938

Syllabus by the Court.

1."Prohibition" is an extraordinary judicial writ issuing out of a court of superior jurisdiction to keep inferior courts and tribunals within the limits and bounds prescribed for them by law, and its use in proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined to the exercise of those powers with which it has been by law intrusted.Lattimore v. Vernor,142 Okl. 105, 288 P 463.

2.On application for prohibition the only inquiries permitted are whether the inferior court is exercising a judicial power not granted by law, or is attempting to make an excessive and unauthorized application of judicial force in a cause otherwise cognizable by it, and, consequently, this court will not investigate the merits of the cause before the inferior court.Lattimore v. Vernor,142 Okl. 105288 P. 463.

3.Arbitrary power does not abide with the courts of Oklahoma.Lattimore v. Vernor,142 Okl. 105, 288 P. 463.

4.When a district judge makes an unwarranted and therefore unauthorized or unlawful application of judicial power he may be and should be prohibited.Lattimore v. Vernor,142 Okl. 105, 288 P. 463.

5.Pending final hearing of a proceeding under section 3450 O.S.1931, 22 Okl.St.Ann. § 1184, the district court in which such cause is pending has the power to suspend accused officials, however, such power should not be exercised until hearing has been had from which the court can consider the circumstances shown in the case and any other reasons which may be offered as to why suspension should be ordered or not, and the accused official is entitled to reasonable notice and an opportunity to appear and be heard on the question of his suspension.Lattimore v. Vernor,142 Okl. 105, 288 P. 463;Maben v. Rosser,24 Okl. 588, 103 P. 674.

Original proceedings by Otto Rose and others for writ of prohibition against Ben Arnold, Judge of the District Court of the Thirteenth Judicial District, and others, to prohibit the enforcement of orders suspending petitioners from office as members of the Board of Education of Oklahoma City.

Writ granted.

HURST, J., dissenting.

Edward M. Box and Ray J. Watson, both of Oklahoma City, for petitioners.

John Barry, Wayne Wheeling, and Sid White, all of Oklahoma City, for Ross Lillard.

J. B. Dudley and Jack Spivey, both of Oklahoma City, for Ed. W. Spivey.

Everest, McKenzie & Gibbens, of Oklahoma City, for Robin Knight.

Lewis R. Morris, Co. Atty., of Oklahoma City, Mac Q. Williamson, Atty. Gen., and Randall S. Cobb, Asst. Atty. Gen., for respondents.

WELCH Justice.

This is an original action to prohibit the enforcement of orders made by the respondent, district judge, suspending the petitioners from office as members of the Board of Education of Oklahoma City.The County Attorney and Attorney General are not essential parties, though named in the action.Our alternative writ issued July 5th permitted the district judge, who is hereinafter referred to as the respondent, to show cause why peremptory writ of prohibition should not issue, or in the alternative permitted the granting of a hearing to petitioners on the matter of their suspension after notice to each of them.The respondent elected not to grant such hearing, and instead, to answer and make response and return in an effort to show legal cause why peremptory writ should not issue.

Such answer and response and return of the alternative writ of prohibition has been filed and there is no controversy as to the facts.

Essential facts are that on Saturday, July 2nd, 1938, in the late afternoon a grand jury in district court presided over by respondent, Ben Arnold, presented accusations against the petitioners here, charging them with mal-administration in their official acts as members of the Board of Education of Oklahoma City, and charging one of them (Spivey) with corruption in office, and seeking their removal from office.The accusations were filed at once, the grand jury discharged and court adjournment was announced by the judge.Whereupon the county attorney called to the district judge's attention, the fact that the accusations requested the suspension of the accused officers, and the district judge immediately ordered the petitioners suspended from office pending trial on the accusations.Thereafter the county attorney prepared copies of the accusations and a notice requiring the accused officers to appear and answer the accusations on July 15th, 1938.These copies of accusations, and notices to appear and answer, were served on the petitioners herein.Some were served quite late on Saturday, July 2nd, and others were served early in the morning of Monday, July the 4th.The latter day being a legal holiday the courthouse, and the offices of the judge and court clerk were not regularly open for business, nor was the court regularly in session.However, about eleven o'clock A. M., on that day, by request of the attorneys prosecuting the accusations, the court clerk and the district judge came to the court house, the clerk opened his office and the judge opened court.Though without any court order to that effect, the clerk's appearance docket indicates that on that date and at that time the county attorney "withdrew" the accusations, and thereafter immediately refiled or "filed" the accusations, and also filed proof of service of copies of the accusations and of notice to appear and answer.The next entry by the clerk shows on that day the issuance of a second order of suspension of the accused officials, and the journal entry thereof in each case signed by the judge shows that at eleven o'clock A. M., on that day, July 4th, the cause "comes on for hearing upon that part of the accusation in this cause which prays that the court suspend the above named defendants and each of them from office."That journal entry then recites the appearance of the attorneys prosecuting the accusations, recites the service of copies and notice to appear and answer on July 15th, recites the making of an oral application at that time by the attorneys for the immediate suspension of the officials, recites consideration of said oral application and the examination of the accusation, and the circumstances surrounding the case, finds that strong reasons exist for suspension, but does not state what any such reason was, and orders the immediate suspension of the accused officers.That journal entry makes no reference to the order of suspension theretofore made on July 2nd.The accused officers were not present or represented, nor did they have any notice or knowledge that the matter would be called up or would come on for hearing at the session of court, which was specially called for the making of this order on the morning of the 4th of July.On the contrary, they had been specifically notified that the matter would come up on July 15th for their appearance and answer.

The next entry by the court clerk indicates that on the same day, July 4th, and at the same time, upon oral application of the attorneys prosecuting the matter, the prior order of suspension of July 2nd was vacated "as per journal entry;" but there is no journal entry of an order showing such vacation of the prior order.

It is the contention of the petitioners in this court that whether the suspension of petitioners was accomplished by the first order of suspension of July 2nd, or was accomplished by the second order of suspension of July 4th, that the action of the court at the time and in the manner shown amounted to the making of an unauthorized application of judicial power and should be prohibited.

Upon the open hearing in this courtthe respondents admitted that the suspension order of July 2nd was unauthorized and void, but they contend that on July 4th the former order of July 2nd was vacated, and that the order of July 4th was valid and its enforcement should not be prohibited.

The only thing that occurred between the two suspension orders was the delivery to the petitioners of copies of the accusations, together with notice to appear and answer on July 15th.This had not been done when the first suspension was ordered, and this distinguishing fact is relied upon to distinguish the latter order of suspension as a valid and proper one.

The last two clerk's entries on the appearance docket above referred to under date of July 4th read as follows:

"July 4th Issued order of Suspension"

"July4th Ent.Order.Presented the accusation to the court and proof of service to appear and answer and of accusation upon each defendant and orally applied to the court for an order of suspension as to each defendant.The court after considering the accusation, the said proof of service and oral application of the County Attorney and Assistant Attorney General, ordered the prior order of suspension issued July 2, 1938, vacated and ordered a new order of suspension issued against each defendant as per J. E. Order of suspension issued.(Arnold)"

The journal entry fully covers the matters mentioned in the last clerk's entry, except as to vacating the prior order of suspension of July 2nd.The journal entry omits any reference whatever to the prior suspension or to any vacation of it.

Without deciding whether the order of July 2nd was properly vacated by order of the court, or whether the suspension of these officials was accomplished by the order of July 2nd, or by the order of July 4th, we should not declare and establish a rule for the future guidance of our courts that suspensions may safely be...