State ex rel. Attorney Gen. v. Davenport

• Decision Date: 10 May 1927
• Docket Number: Case Number: 18081
• Citation: 256 P. 340,125 Okla. 1,1927 OK 137
• Parties: STATE ex rel. ATTORNEY GENERAL v. DAVENPORT et al.
• Court: Oklahoma Supreme Court

1927 OK 137

256 P. 340

125 Okla. 1

STATE ex rel. ATTORNEY GENERAL v. DAVENPORT et al.

Case Number: 18081

Supreme Court of Oklahoma

Decided: May 10, 1927

Syllabus

¶0 1. Courts--Prohibition -- Supreme Court's Jurisdiction to Issue Writ Against Other State Courts.

By virtue of section 2, article 7, Williams' Annotated Constitution of Oklahoma, the Supreme Court is given original jurisdiction to issue writs of prohibition to any and all courts created by either the Constitution or by statute, prohibiting and restraining such court or courts from undertaking to exercise a jurisdiction not granted it or them, or rendering a judgment in excess of their power.

2. Courts--Criminal Court of Appeals--Creation and Jurisdiction.

Section 2, article 7, Williams' Annotated Constitution of Oklahoma, grants permissive authority to the Legislature to create a Criminal Court of Appeals. Such court, if and when created, is one of special and limited jurisdiction. The authority granted the Legislature to confer jurisdiction upon said court is only appellate in criminal cases.

3. Appeal and Error--No Right of Appeal from Supreme Court to Criminal Court of Appeals.

There is no provision in the Constitution or laws of the state of Oklahoma which authorizes or permits an appeal from the Supreme Court of the state to the Criminal Court of Appeals, and, therefore, no right of appeal exists.

4. Courts--Jurisdiction of Criminal Court of Appeals to Issue Extraordinary Writs.

Section 2, article 7, Williams' Annotated Constitution, does not give such special court, therein referred to as the Criminal Court of Appeals, any jurisdiction to issue extraordinary writs, such as habeas corpus, quo warranto, prohibition, etc., and it therefore possesses no such jurisdiction, unless it be by implication in aid of its appellate jurisdiction in criminal cases.

5. Same--Lack of Jurisdiction to Disturb Judgments of Supreme Court.

The Criminal Court of Appeals is not given by the Constitution or statutes any power, authority, or jurisdiction to affirm, reverse, review, vacate, modify, suspend, or otherwise alter, on any kind of proceedings, the final judgment and decree of the Supreme Court of the state.

6. Contempt--Jurisdiction of Supreme Court to Punish for Contempt.

The Supreme Court of Oklahoma has inherent jurisdiction, as well as statutory jurisdiction, to issue citations, and punish for contempt.

7. Courts--Criminal Court of Appeals--Jurisdiction--Legislative Control--Issuance of Extraordinary Writs.

The jurisdiction of the Criminal Court of Appeals, given it by statute within the permissive sanction of the Constitution of the state, exists and can be exercised solely by virtue of statutory authority, and if the statute purports to give the said Criminal Court of Appeals power to issue any extraordinary writ as herein referred to, the Legislature has the right to regulate the issuance thereof, and the power and authority of the court when acting thereon. All such authority or jurisdiction being itself statutory, its limitations can be prescribed by the legislative authority of the state.

8. Habeas Corpus--Validity of Statute Forbidding Inquiry into Judgment of Contempt.

Section 432, C. O. S. 1921, is not inconsistent with section 10, article 2, of the Constitution of Oklahoma, and is a constitutional enactment.

9. Contempt--Criminal Court of Appeals Without Jurisdiction to Inquire Into Commitment for Contempt by Supreme Court.

Section 432, C. O. S. 1921, provides:

"No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following. * * * Third. For any contempt of any court, officer or body having authority to commit."

This section precludes the Criminal Court of Appeals from inquiring into or discharging from custody a person held on a commitment for contempt by a court having jurisdiction to commit, and in the instant case, the Supreme Court having jurisdiction to commit for contempt, the said Criminal Court of Appeals is precluded by said section of the statute from exercising any jurisdiction to inquire into the commitment or to order the contemnor discharged.

10. Habeas Corpus--Constitutional Right to Writ.

Section 10, article 2, Williams' Annotated Constitution, which deals with the right or privilege of the writ of habeas corpus, preserved without extension the right to such writ in the form in which it existed at the time of the adoption of the Constitution, and to serve the purpose for which it could then be utilized under the statutes and the common law.

11. Contempt--Contempt not "Crime" Within Appellate Jurisdiction of Criminal Court of Appeals.

Conviction for contempt is not conviction for a crime, in the acceptation and meaning of said term, as used in section 2, article 7 of the Constitution, giving the Criminal Court of Appeals exclusive appellate jurisdiction in criminal cases.

12. Judges -- Waiver of Disqualification--Judgment by Disqualified Judge not Void.

In this state a litigant's right to preclude from the trial of his case a disqualified judge or judges is a personal privilege, which can be waived by him, and not a right which public policy will enforce as against his waiver. A judgment of a court pronounced by a judge who is disqualified is not void.

13. Habeas Corpus--Release from Custody Under Commitment for Contempt.

A contemnor will not be released from custody on a writ of habeas corpus in any case, and the said writ does not lie to review the judgment of commitment, unless the said judgment is void.

Application for a writ of prohibition by the State on the relation of the Attorney General against James S. Davenport and the Criminal Court of Appeals. Writ granted.

The Attorney General, for relator.

James S. Davenport, for respondents.

BRANSON, C. J.

¶1 This matter is before this court on application of the relator for a writ of prohibition against James S. Davenport, as one of the Judges of the Criminal Court of Appeals of the state of Oklahoma, against the Criminal Court of Appeals, and the other members thereof.

¶2 Preliminary to a discussion of the law, a brief statement of the history out of which this matter arises should be made. On the 7th day of January, 1927, this court, on complaint filed by the relator, issued a citation to the respondent, O. O. Owens. A brief summary of the complaint is incorporated in the judgment and sentence as an appendix to this opinion. The citation directed that he show cause why he should not be adjudged by this court guilty of contempt, and punished therefor. The cause came on for hearing April 23, 1927. The proceedings on the hearing are disclosed by the said judgment made a part hereof, post. Within a few minutes thereafter, the respondent Owens presented to Hon. Jas. S. Davenport, one of the members of the Criminal Court of Appeals, an application for a writ of habeas corpus, which was by the said Jas. S. Davenport denied, but, in lieu thereof, the said Jas. S. Davenport made and entered what was termed a rule to show cause why a writ of habeas corpus should not be issued and the petitioner therein, O. O. Owens, discharged from custody; and ordered his release, as is shown by the record of the said Criminal Court of Appeals, in cause A-6581, on bond, which bond was approved by the said Davenport. Said order to show cause was made returnable by the said judge to the said Criminal Court of Appeals, and thereby placed the relator upon notice of the intended presentation and hearing by the said Criminal Court of Appeals of the said application to discharge the said O. O. Owens. This court immediately and on the said 23rd day of April, 1927, issued an alternative writ of prohibition against the said Jas. S. Davenport, and against the said Criminal Court of Appeals, to show cause on Monday, the 25th day of April, why he and the said Criminal Court of Appeals should not have issued against them an absolute writ of prohibition, prohibiting the said court and the members thereof from affirming, vacating, modifying, suspending, or in any wise altering the final judgment and decree of this court which adjudged the said O. O. Owens in contempt of this court; and, upon the return, entered an absolute prohibition, which is made an appendix to this opinion, and marked "Exhibit B". That thereafter an amended and supplemental application for a writ of habeas corpus was filed in the said Criminal Court of Appeals, in the said cause A-6581, setting up alleged and pretended grounds on which the petitioner. Owens, prayed a release and discharge from custody from the sheriff of Oklahoma county.

¶3 We take it that argumentative discussion and a citation of authorities are unnecessary to establish that a writ of prohibition cannot he issued, except to prevent threatened action by a court in excess of its authority and jurisdiction, or to prevent the abuse of authority or the use of excessive judicial force.

¶4 We feel impelled to set out why the application for the writ of prohibition was and should have been granted, and the writ issued in this case. There are so many reasons why the said court had no jurisdiction to grant his prayer that we deem it only necessary to discuss a few of them.

¶5 It is not every court or tribunal having judicial or quasi judicial authority that has authority to grant or discharge a person in custody on a writ of habeas corpus. The power of the court to take such action must be found in the Constitution or the statutes of the sovereign. In this connection the question arises as to whether or not the Criminal Court of Appeals of Oklahoma has power, on the habeas corpus, to discharge a person held in custody on process from this or any other court having power to commit. The process and judgment of this court was before the Criminal Court of Appeals in the form of a return filed by the sheriff of Oklahoma county, setting forth a...