State ex rel. Cruce v. Cease

• Decision Date: 07 March 1911
• Docket Number: Case Number: 2039
• Citation: 1911 OK 69,28 Okla. 271,114 P. 251
• Parties: STATE ex rel. CRUCE, Governor, v. CEASE et al.
• Court: Oklahoma Supreme Court

1911 OK 69

114 P. 251

28 Okla. 271

STATE ex rel. CRUCE, Governor, v. CEASE et al.

Case Number: 2039

Supreme Court of Oklahoma

Decided: March 7, 1911

Syllabus

¶0 CONSTITUTIONAL LAW--Statutes--Who May Determine Constitutionality. Laws are presumed to be, and must be treated and acted upon by subordinate executive functionaries as constitutional and legal until their unconstitutionality or illegality has been judicially established.

Application by the State, on the relation of Lee Cruce, for a writ of mandamus to Frank P. Cease and others. Writ granted on conditions.

Giddings & Giddings, for plaintiff.

E. V. Rakestraw and Moss, Turner & McInnis, for defendants.

KANE, J.

¶1 This is an original proceeding, praying for a peremptory writ of mandamus against the above-named defendants as county officers of Swanson county, commanding them to hold their respective offices for the transaction of official business in Swanson county at Mt. Park, as the temporary county seat of said county named by the Governor in his proclamation proclaiming the creation of said county. After the Governor issued his proclamation, wherein he certified to the election of the county officers elected to fill the various county offices provided by law, it seems that all such officers, except the sheriff, disregarded the proclamation of the Governor designating Mt. Park as the temporary county seat of said county, and opened their respective offices at Snyder in said county, and are holding their offices there as though said town of Snyder was the county seat. The writ is prayed to require said officers to remove their said county offices from Snyder to Mt. Park, together with all the records, files, dockets, paraphernalia, and papers of whatsoever nature appertaining to said offices. The sole contention of counsel for the defendants is that section 1854, Compiled Laws of Oklahoma 1909, which provides that the Governor shall designate the county seat of a new county, "which place shall be and remain the county seat unless afterwards changed as provided by law," is unconstitutional, for the reason that it is repugnant to section 4, art. 17, of the Constitution, which provides:

"The Legislature shall provide by general laws for the creation of new counties or alternating or changing lines and the equitable division of assets and of liabilities, and the original location of county seats in such new counties: Provided, that every such question shall be submitted to the vote of the qualified electors residing in the territory to be formed into such new county or transferred to another county, and shall be approved by sixty per centum of the votes cast in said election."

¶2 We are of the opinion that this defense is not available to the defendants as county officers. It is their duty to hold their offices at the county seat designated by the Governor. As far as the record shows, they would neither gain nor lose anything by invoking the advice of the Supreme Court as to the constitutionality of the law providing for the designation of the temporary county seat. The Governor at least has colorable authority to name the county seat; the defendants, as county officers, are entirely without authority in the premises. This rule was approved by the Supreme Court of the territory in a case which, although not exactly in point, is sufficiently analogous to call for a review of the opposite views which the courts have taken of this question. Threadgill et al. v. Cross, Secretary of State, 26 Okla. 403, 109 P. 558.

¶3 Braxton County Court v. West Virginia ex rel. Dillion, 208 U.S. 192, 28 S. Ct. 275, 52 L. Ed. 450, was a proceeding for mandamus brought by certain residents and taxpayers of Braxton county, W. Va., to compel the county court of that county to change the assessments of that county to conform to the requirements of a certain act of the Legislature of the state. One of the grounds of defense was that the act sought to be enforced was in violation of the federal Constitution. The Supreme Court held that, in order to avail themselves of such a defense, the interest of the appellants should be a personal, and not an...