State ex rel. Caldwell v. Hooker

Decision Date24 November 1908
Docket NumberCase Number: 388
Citation1908 OK 244,98 P. 964,22 Okla. 712
PartiesSTATE ex rel. CALDWELL v. HOOKER, County Judge.
CourtOklahoma Supreme Court
Syllabus

¶0 1. STATUTES--Expression of Subject in Title. An act (Laws 1907-08, p. 594, c. 69), the general object of which was to prohibit the manufacture, sale, barter, giving away, or otherwise furnishing of intoxicating liquors, except as therein provided for medical, industrial, and mechanical purposes, entitled "An act to establish a state agency, and local agencies for the sale of intoxicating liquors for certain purposes; and providing for referring same to the people; prohibiting the manufacture, sale, barter, giving away or otherwise furnishing of intoxicating liquors, except as herein provided; providing for the appointment of an attorney, and for the enforcement of the provisions of this act; making an appropriation and declaring an emergency"--is not in conflict with section 57, art. 5 (Bunn's Ed. sec. 130), of the Constitution of Oklahoma, because the title contained an abstract of the contents of the act; the Constitution being satisfied if the act has but one general subject, and that is fairly indicated by the title. It may have many details, but if they all relate to the same general subject or object, they are properly included therein.

2. SAME. The title may be expressed in general words, or it may be a brief statement of the subject, or it may be an index to, or an abstract of, the contents of the act.

3. CONSTITUTIONAL LAW--Construction--Intent. In construing a provision of a Constitution, the primary inquiry is to ascertain the intention of the framers, and of the people who adopted the same, and in such construction and determination, technical rules should be disregarded, and, as a rule, a mean between a strict and a liberal construction followed.

4. SAME--Self-Executing Provisions--Supplementary Legislation. Though a constitutional provision may be self-executing, yet legislation may be desirable for the better protection of the right secured, and to provide a more specific and convenient remedy for carrying out such provision.

5. SAME. The only limitation, unless otherwise expressly indicated, imposed upon the Legislature in such legislation is that the rights guaranteed thereunder shall not be curtailed, or any undue burdens placed thereon. Supplementary legislation in particulars where, in itself, it is not as complete as may be desirable may be enacted.

6. SAME--Power of Legislature--Implied Limitation. A restriction or limitation upon the power of the legislature, upon any subject of legislation, will not be presumed or implied, unless from the entire instrument it clearly appears that it was so intended.

7. SAME--Limitation of Prohibition Article. The prohibition article was not intended as a limitation or restriction upon the power of the people, through the initiative or the Legislature, to enact additional or supplemental legislation relative to the liquor traffic, except that no enactment should contravene the provisions of such ordinance.

8. STATUTES--Construction--Substitution of Words--"And"--"Or." Whenever it is clear that either of the words "or" or "and" has been mistakenly used for the other, the word intended will be substituted for the one mistakenly used, so as to carry out the legislative intent.

9. SAME. It is not that "or" is read "and." for "or" never means "and," but "or," when used by mistake for "and," should be substituted by "and"; the legislative intent imperatively so requiring.

10. SAME. Section 8, art. 3, of the enforcing act (Laws 1907-08, p. 606, c. 69), was evidently intended by the Legislature to follow the language of section 30, art. 2 (Bunn's Ed. sec. 39) of the Constitution, relative to search and seizure, and that the word "or" was inserted, either by the framer of the act or by the copyist, by inadvertence or clerical error; and, in order to carry out the evident legislative intent, the same will he construed by substituting the conjunctive particle "and" in the place of the disjunctive "or."

11. SAME--Construction--Change in Existing Law--Presumptions. The presumption is that the legislature does not intend to make any change in the existing law beyond what is expressly declared; and, when an act creating a remedy or right does not prescribe the procedure therefor, it will be assumed that the general mode of procedure was intended, unless the same is expressly excluded.

12. JURY--Right to Trial by Jury--Seizure. In trials as to property rights under section 6, art. 3, of the enforcing act (Laws 1907-08, p. 605, c. 69), claimants are entitled to the right of trial by jury.

Original petition for mandamus by the State, on relation of Fred S. Caldwell, Counsel to the Governor, against Sam Hooker. County Judge of Oklahoma County. Writ awarded upon further application, in the event respondent failed to act.

On the 9th day of September, A.D. 1908, the relator, Fred S. Caldwell, as counsel for the Governor of the state, joined by Edward E. Reardon, county attorney of Oklahoma county, instituted this action in this court by petition, alleging that the respondent was the duly elected, qualified, and acting county judge of said county, and had been continuously since the 16th day of November, A.D. 1907; that on the 8th day of September, A.D. 1908, there was presented to said respondent, as county judge, an information or complaint, in due form, duly supported by the affidavit of Jas. L. Brown, and indorsed, respectively, by the county attorney and county judge of said county, as follows:

"Oklahoma City, Oklahoma, Sept. 8, 1908. I examined facts and recommend that warrant issue. [Signed] Edward E. Rear-don, County Attorney."
"This showing presented to me in open court, and I refuse to issue the search warrant prayed for by Jas. L. Brown, for the reason that I hold the act referred to herein and under which the warrant is sought to be issued, to be unconstitutional and void under the Constitution of Oklahoma. Applicant excepts. Dated Sept. 8. 1908. [Signed] Sam Hooker. Co. Judge."

It is further alleged that said respondent, in failing to take jurisdiction and issue the search warrant prayed for, failed and refused to perform a duty imposed upon him by law as judge of said county court. It is further alleged that under the law all appeals from justices of the peace in Oklahoma county are returnable to rise said county court, over which the respondent presides as judge, and that practically all prosecutions for violations of the laws of Oklahoma relating to the sale of intoxicating liquors are cognizable before said county court, and that said respondent, in holding the said act, commonly known as the "Billups' Bill," otherwise herein referred to as the "Enforcing Act" (Laws 190708, p. 594, c. 69), unconstitutional and void, renders it impracticable to enforce the provisions of said law in said county, and that the state has no other plain and adequate remedy except by mandamus. Wherefore the petitioners pray that this court take original jurisdiction and issue an alternative writ of mandamus to the said respondent, commanding him to assume jurisdiction and issue the search warrant as prayed for, or to appear before this court at a stated time and show cause, if any, why said writ should not be made final and peremptory.

Fred S. Caldwell, J. L. Brown, and O. T. Smith, for relator.

J. H. Grant, C. W. Stringer, and E.G. McAdams, for respondent.

WILLIAMS, C. J.

¶1 (after stating the facts as above). It is necessary to pass on the following questions, in order to determine whether or not the writ should be awarded: (1) Whether or not the act entitled "An act to establish a state agency, and local agencies for the sale of intoxicating liquors for certain purposes; and providing for referring the same to the people; prohibiting the manufacture, sale, barter, giving away or otherwise furnishing of intoxicating liquors, except as herein provided; providing for the appointment of an attorney, and for the enforcement of the provisions of this act; making an appropriation and declaring an emergency" (Laws 1907-08, p. 594, c. 69)--contravenes section 57, art. 5 (Bunn's Ed. § 130) of the Constitution of Oklahoma (2) Is the prohibition article, submitted separately, and ratified at the same time the Constitution was, an implied limitation on the Legislature, and is section 1, art. 3, of the enforcing act, void for the reason that it exceeds such limitation? (3) Are the search and seizure provisions of the enforcing act (sections 5, 6, 7, 8, and 9, art. 3, Senate Bill No. 61, Sess. Laws Okla. 1907-08, pp. 605, 606, c. 69) in conflict with section 7, art. 2 (Bunn's Ed. § 16), of the Constitution? (4) Does section 8, art. 3, supra, of the enforcing act accord with section 30, art. 2 (Bunn's Ed. § 39), of the Constitution? (5) Does section 6, art. 3, of the enforcing act (Sess. Laws Okla. 1907-08, p. 605, c. 69), or any portion thereof, conflict with section 19, art. 2 (Bunn's Ed. § 28), or section 20, art. 7 (Bunn's Ed. § 193), of the Constitution?

¶2 1. The title of the enforcing act relates primarily to only one subject, namely, the prohibiting of the manufacture, sale, barter, giving away, or otherwise furnishing of intoxicating liquors, except as otherwise provided (which is for medicinal, industrial, or mechanical purposes). The establishment of such agency, or agencies, for furnishing such liquors for medicinal, industrial, or mechanical purposes, the providing for the appointment of an attorney to prosecute violations of said act, the referring of same to the people for their approval or rejection, the making of an appropriation to carry same into effect, and the declaring of an emergency are all referable and cognate to such subject expressed, and go to make up a complete enactment, or result as a complement of the main thought therein contained.

¶3 On February 7, A.D. 1893, the Legislature of Alabama passed...

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