State ex rel. King v. Rowe
| Decision Date | 09 June 1931 |
| Docket Number | Case Number: 22064 |
| Citation | 149 Okla. 240,1931 OK 328,300 P. 727 |
| Parties | STATE ex rel. KING, Atty. Gen., v. ROWE. |
| Court | Oklahoma Supreme Court |
¶0 1. Courts--Original Jurisdiction of Supreme Court--Matters Publici Juris.
By virtue of section 2, art. 7, Constitution of Oklahoma, section 458, Laws 1925, c. 96, and section 459, C. O. S. 1921, and the publici juris nature of the situation herein presented, this court assumes original jurisdiction in this cause.
2. Judges--Appointment of Special Judge to Sit in Cause in Criminal Court of Appeals--Subsequent Governor Without Power to Remove Appointee and Appoint Another.
Where a Governor commissions a person to sit as special judge of the Criminal Court of Appeals, in lieu of a regular judge of said court disqualified for a term "through and until final determination of said cause in the Criminal Court of Appeals of the State of Oklahoma," a subsequent Governor does not possess the power to cancel, revoke, or set aside such commission and thereby remove such special judge from such office prior to final determination of said cause in said court, nor to commission another person for said office until a vacancy occurs therein.
3. Courts--Status of Criminal Court of Appeals.
The Criminal Court of Appeals is not a court created by the Constitution of Oklahoma, but it exists by reason of exercised permissive authority vested in the Legislature. Section 2, art. 7, Const. secs. 3037-3055, C. O. S. 1921.
4. Judges--Judges of Criminal Court of Appeals not Subject to Impeachment but to Removal Under Statutes.
Judges of the Criminal Court of Appeals are not subject to impeachment under section 1, art. 8, Constitution, but such judges are subject to removal from office by virtue of sections 2 and 6, art. 8, Constitution, and sections 2394 to and including 2425, C. O. S. 1921.
5. Same--Judges not Subject to Removal by Executive Order.
Section 2, C. O. S. 1921, is not applicable for the removal of a judicial officer by executive order by reason of section 1, art. 4, Constitution, providing for separation of the powers of government, and by reason of the generality of its terms, and by reason of exclusive provisions of statute. (Sections 2394-2425, C. O. S. 1921.)
Original action in the nature of quo warranto by the State ex rel. J. Berry King, Attorney General, against Prentiss E. Rowe. Judgment for respondent.
J. Berry King, Atty. Gen., and F. M. Dudley, Asst. Atty. Gen., for petitioner.
Edwin Dabney, for respondent.
¶1 This is an original action in the nature of quo warranto prosecuted in the name of the state of Oklahoma on the relation of the Attorney General at the direction of the Governor. Epitomized, the facts to be drawn from the petition and response are:
¶2 On November 7, 1930, Judge Chappell, a regularly elected member of the Criminal Court of Appeals of the state of Oklahoma, certified to Honorable W. J. Holloway, then Governor, his disqualifications to sit in the consideration and determination of two causes pending before the said court, the same being causes A-7547 and A-7591, both styled, "State of Oklahoma v. Sam Ingram." On the same day the then Governor appointed and commissioned the respondent, Prentiss E. Rowe, as a special judge of said court in lieu of Judge Chappell, disqualified, to sit in the consideration and final determination of the said Ingram causes. On November 10, 1930, Judge Rowe, so appointed and commissioned, qualified by taking and subscribing to the prescribed oath as required by law, and assumed the duties as a member of said court. On January 2, 1931, the Criminal Court of Appeals, composed of Honorable James S. Davenport, Presiding Judge, Honorable Thomas A. Edwards, a regularly elected judge, and the respondent aforesaid, special judge, rendered a decision in each of said Ingram causes based upon opinions prepared by the respondent Rowe. The Ingram causes were reversed by said decisions, the Honorable James S. Davenport, judge, concurring therein and the Honorable Thomas A. Edwards dissenting therein.
¶3 On January 16, 1931, the state, as a party to the Ingram causes, filed in said court a petition for rehearing, and on the 15th day of January, 1931, the present Governor, Honorable William H. Murray, issued an executive order having for its apparent purpose the cancellation of the commission and appointment theretofore issued and heretofore described, under and by virtue of which the respondent, Judge Rowe, was then serving in said judicial capacity. This executive order reads as follows:
¶4 On the same day said Governor issued an order having for its purpose the appointment of Honorable J. T. Dickerson, by virtue of which it was sought to designate him to act in lieu of Honorable William H. Chappell, disqualified, and instead of respondent, Honorable Prentiss E. Rowe, for the consideration and final determination of the said Ingram causes. This order was as follows:
¶5 On January 16, 1931, Honorable J. T. Dickerson subscribed to the oath of office as by statute provided.
¶6 On January 17, 1931, Honorable Thomas A. Edwards and Honorable J. T. Dickerson, assuming to act as a majority of said count, promulgated an order purporting to grant a rehearing in the said Ingram causes. On the same day Honorable James S. Davenport and the Honorable Prentiss E. Rowe, respondent, assuming to act as a majority of said court, promulgated an order purporting to deny rehearing in the said Ingram causes and directing the issuance of mandate therein.
¶7 On January 17, 1931, Honorable William H. Murray, Governor, issued an executive order to the Attorney General of the state of Oklahoma, directing the institution of an action to test the authority under which Honorable Prentiss E. Rowe assumed to act as herein stated.
¶8 In compliance with the last-mentioned executive order the Attorney General filed petition herein on January 23, 1931, and response was filed February 2nd thereafter. On May 16, 1931, a supplement to response was filed by permission of court.
¶9 This court assumes jurisdiction by reason of section 2, art. 7, Constitution of Oklahoma, which provision, after granting to this court the power to issue remedial writs, continues:
"And the Supreme Court may exercise such other and further jurisdiction as may be conferred upon it by law. * * *"
And by reason of section 458, C. O. S. 1921, ch. 96, S. L. 1925, in part reading as follows:
"The writ of quo warranto and proceedings by information in the nature of quo warranto are abolished and remedies heretofore obtainable in those forms may be had by civil action."
And by reason of section 459, C. O. S. 1921, reading:
* * *"
And by reason of the publici juris nature of the unusual situation. Also by virtue of section 2, art. 7, Constitution of Oklahoma, wherein is extended the original jurisdiction of the Supreme Court to a superintending control over all inferior courts and all commissions and boards created by law. Section 1, art. 7, Constitution. 125 Okla. 1, 256 P. 340; Owens v. Dancy, 36 Fed. (2nd Series) 882.
¶10 The main question involved is stated by the Attorney General as follows:
"Does the Governor, after he has commissioned a person to sit as a special judge upon the Criminal Court of Appeals, in the place and stead of one of the regular judges of said court, in certain cases pending on appeal in said court for decision, for the term 'through and until final determination of said cause in the Criminal Court of Appeals of the State of Oklahoma,' possess the right and authority to cancel, revoke and set aside such commission, and thereby remove such special judge from such office, prior to the final determination of said cases in said court, and commission another person in the place and stead of such disqualified regular judge in said cases?"
¶11 The Criminal Court of Appeals is not a court created by the Constitution of Oklahoma. It is a creature of statute existing by virtue of exercised permissive authority vested in the Legislature for its creation by section 2, art. 7, Constitution of Oklahoma. (S. L. 1909, p. 170; sections 3037 to 3055, C. O. S. 1921.)
¶12 In Chickasha Cotton Oil Co. v. Lamb & Tyner, 28 Okla. 275, 114 P. 333, this Supreme Court held:
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... 300 P. 727 149 Okla. 240, 1931 OK 328 STATE ex rel. KING, Attorney General, v. ROWE. No. 22064. Supreme Court of Oklahoma June 9, 1931 ... Syllabus ... by the Court ... ...