State ex rel. Lee v. Chaney

• Decision Date: 12 May 1910
• Docket Number: Case Number: 507
• Citation: 23 Okla. 788,1910 OK 173,102 P. 133
• Parties: STATE ex rel. LEE v. CHANEY et al.
• Court: Oklahoma Supreme Court

1910 OK 173

102 P. 133

23 Okla. 788

STATE ex rel. LEE v. CHANEY et al.

Case Number: 507

Supreme Court of Oklahoma

Decided: May 12, 1910

Syllabus

¶0 1. COURTS--Constitutional Law--State Courts--Territorial Decisions--Stare Decisis--Determination of Constitutional Questions. The Supreme Court of this state took and possesses any and all jurisdiction of the Supreme Court of the territory of Oklahoma, except as otherwise provided in the Constitution, and has the same power and right as said court to review any of its decisions for the purpose of ascertaining whether or not such decision was erroneous in declaring a territorial statute invalid and should be permitted to stand or be overruled, as being repugnant to the organic act.

(a) If this court determines that such decision was erroneous, and such act was not in fact repugnant to the organic act, it should exercise the power and perform the duty of overruling such decision, unless prevented by the rule of stare decisis, by declaring that such act was not in conflict with the organic act, and consequently in force in the territory at the time the state was admitted into the Union, and, if not in conflict with the Constitution or locally inapplicable, continued in force in the state.

2. CONSTITUTIONAL LAW--Encroachment on Judiciary--Investing City Council With Judicial Power. Section 439, Wilson's Rev. & Ann. St. 1903 (section 626, St. Okla. 1893), providing for the removal of city marshals, chiefs of police, and police officers, is repugnant to section 9, Organic Act (26 Stat. 85, c. 182, approved May 2 1890), following Christy v. City of Kingfisher, 13 Okla. 585, 76 P. 135.

3. STATUTES--Territorial--Invalidity--Effect. If an act of the Legislature of the Territory of Oklahoma was repugnant to the organic act, it was invalid and of no force whatever, and did not become effective under the state government, although such act may not have been repugnant to the provisions of the Constitution of this state.

Error from District Court, Pittsburg County; P. B. Cole, Judge.

Mandamus by the State, on the relation of R. C. Lee, against George M. Chaney, as Mayor, and others, as Councilmen, of the City of McAlester, and others. Judgment for defendants, and relator brings error. Reversed and remanded.

On the 5th day of October, A. D. 1908, the state of Oklahoma, on the relation of R. C. Lee, plaintiff in error in this court, commenced its action against George M. Chaney, as mayor, E. C. Million, A. W. Jones. S. Crowl, C. H. Hess, J. L. Farmer, A. S. McKennon, S. A. Zike, J. H. Tucker, R. B. Coleman, J. M. Lathim, J. R. Hurley, and T. J. Ferris, as members of the city council, J. M. Gannaway, as city clerk, Ed Hocker, as city treasurer, of the city of McAlester, and E. T. Gabbert, defendants in error in this court.

Plaintiff alleged: That on the 2d day of April, A. D. 1907, the relator was duly and legally elected to the office of chief of police of the city of McAlester, Okla., by the qualified voters of said city, and on the 8th day of April, A. D. 1907, duly qualified and entered upon the discharge of his duties as chief of police of said city; that from said date until the 27th day of July, A. D. 1908, the relator continued to hold said office and to perform the duties thereof, but upon the date last above mentioned the said mayor and city council did wrongfully, illegally, and without right, attempt to deprive the relator of said office and the emoluments thereof, by then and there passing a resolution by said council suspending said relator from further duties as such chief of police until certain charges which had been preferred against him could be examined by said council; that such action of said mayor and city council in passing said resolution suspending said relator was illegal and void, as said city council, under the laws of the state of Oklahoma, had no right or power to pass such a resolution; that afterwards a hearing was had before said mayor and city council upon the charges which had been preferred against said relator, and upon final hearing there of said city council by a majority vote, to wit, on the 26th day of August,, A. D. 1908, pretended to remove the relator from said office and declared said office vacant, which proceedings and action of said city council and mayor was illegal and void, for the reason that said mayor and city council had no power or authority under the laws of the state of Oklahoma to declare said office vacant and to remove said relator therefrom, or not deprive relator thereof, and no jurisdiction to hear, determine, and pass upon said charges and suspend and remove from office a chief of police elected by the voters of said city.

Relator further represented: That said charges were untrue and not sustained by the evidence before said council; that he is now, and has at all times since the date of his said election been, the duly elected, qualified, and acting chief of police of said city of McAlester, and is now, and has at all times since his election been, endeavoring to exercise the functions of said office, but that said mayor and city council have wrongfully, wilfully, and illegally, and without right, since the 27th day of July A. D. 1908, prevented the relator from discharging the duties of said office, refused to recognize him as chief of police of said city, and refused to permit him to draw his salary as such officer; that the salary of said office at the time of relator's election and at the time of his pretended suspension and expulsion from office, and now is, $ 100 per month, fixed and provided for by ordinances of said city; that the said mayor and city council have refused to consider and allow said salary, though repeatedly demanded so to do by said relator; that the defendants the city clerk and treasurer of said city have refused and failed to issue a warrant to the relator for said salary and to cash the same, it being their duty under the law so to do; that there is now and has been continuously since said suspension money in the hands of said city treasurer to the credit of the fund for the use of said council, and not otherwise appropriated, sufficient to pay the relator's salary; that there is now due said relator from said city as salary as such chief of police the sum of $ 200, being salary for the months of August and September, 1908; and that said salary continues at the rate of $ 100 per month, until the day of April, A. D. 1909.

Whereupon the relator prayed the court to issue a writ of mandamus in his favor against the said mayor and city council of said city, directing them to permit relator, without interference on their part, to exercise the rights, duties, and functions of said office and to recognize him as such officer, to consider and allow and order issued to him a voucher in the sum of $ 200 for salary for the months of August and September, 1908, now due, and that there be issued thereafter a voucher for each month's salary as same becomes due to said relator until the expiration of his term of office, and commanding the said J. M. Gannaway, clerk of said city, to deliver his warrant on the treasurer of said city in favor of relator when allowed and authorized by the mayor and city council, for such amounts, and commanding said Ed Hocker, treasurer of said city, to pay said warrants when issued and presented by the relator for said sums; and against the said E. T. Gabbert commanding him to refrain from usurping the office and duties of said office of chief of police, and from interfering in any way with said relator in the performance of said duties of said office, and to do such other things in that behalf as the law requires.

The relator had due and reasonable notice and a copy of the specific charges filed against him before said council, and of the time for hearing, and appeared before said council and answered said charges, being represented by the same counsel at such hearing that he is represented by in this court. On the 5th day of October, A. D. 1908, the judge of the district court, on application of the relator, caused to issue an alternative writ of mandamus, and on the 8th day of October, A. D. 1908, the defendants filed their response thereto, setting up the preferment of the charges against relator, and his trial and removal from office, alleging that said charges were true. On the same day judgment was rendered in favor of the defendants, and the cause is now properly before this court for review.

Stuart & Gordon, Fuller & Potter, and Brewer & Andrews, for plaintiff in error, cited: Christy v. Kingfisher, 13 Okla. 585; People v. Moyan, 79 N.Y. 558; Arkle v. Board of Com'rs, 41 W. Va. 471; People ex rel. v. Stuart, 74 Mich. 411; Dullam v. Wilson, 53 Mich. 392; Board of Com'rs v. Johnson, 124 Ind. 145; Speed v. Common Council of Detroit (Mich.) 22 L. R. A. 842.

B. P. Hammond and P. S. Lester, for defendant in error, cited: State v. Hawkins, 44 Ohio St. 98; Terry. of Dak. v. Cox, 6 Dak. 501; Donohue v. Will, 100 Ill. 99; Taft v. Adams, 3 Gray, 126; Ex parte Wiley, 54 Ala. 226; Thompson v. Holt, 52 Ala.; State v. Frazier, 48 Ga. 137; Patten v. Vaughan, 39 Ark. 211; Connor v. Mayor of New York, 1 Selden, 285; Long v. Mayor, 81 N.Y. 425; People v. Whitlock, 92 N.Y. 193; Wilson's Rev. & Ann. St. Okla. 1903, par. 357.

WILLIAMS, J.

¶1 (after stating the facts as above). The following questions are presented for consideration on this record:

(1) Has the Supreme Court of this state the right to exercise the power to re-examine a decision of the Supreme Court of the territory of Oklahoma construing an act of the Legislature of Oklahoma as being repugnant to the organic act, and determine whether or not such act was, as a matter of fact and law, in conflict with the organic act, and, if said decision was erroneous, to overrule the same?

(2) Was section 439, Wilson's Rev. & Ann. St. 1903 (section 626, St. Okla. 1893), repugnant to section 9, Organic Act (26 Stat. 85, c. 182,

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