State ex rel. Rucker v. Tapp

• Decision Date: 19 February 1963
• Docket Number: No. 40238,40238
• Citation: 1963 OK 37,380 P.2d 260
• Parties: STATE of Oklahoma ex rel. William W. RUCKER, Petitioner, v. Hon. G. Michael TAPP, Assuming to Act as Judge of the Purported Superior Court of Oklahoma County, Oklahoma, Respondent, Hon. Raymond A. Trapp, Judge of the Superior Court of Kay County, Oklahoma, Intervenor-Respondent.
• Court: Oklahoma Supreme Court

Page 260

380 P.2d 260

1963 OK 37

STATE of Oklahoma ex rel. William W. RUCKER, Petitioner, v. Hon. G. Michael TAPP, Assuming to Act as Judge of the Purported Superior Court of Oklahoma County Oklahoma, Respondent Hon. Raymond A. Trapp, Judge of the Superior Court of Kay County, Oklahoma, Intervenor-Respondent.

No. 40238.

Supreme Court of Oklahoma.

Feb. 19, 1963.

Rehearing Denied March 12, 1963.

Second Petition for Rehearing Denied April 9, 1963.

Syllabus by the Court

1. Where adherence is urged to what is asserted as the 'strict letter' of a statute, and the literal meaning so contended for would lead to an inconsistency or incongruity between different parts of the enactment as they bear upon each other, and would produce consequences clearly beyond legislative contemplation, judicial interpretation becomes necessary to avoid the incongruity and to ascertain the true meaning of the particular words in the light of the context and in accord with the legislative intent.

2. Title 20 O.S.1961, Sec. 161, does not authorize the creation and establishment of a superior court in counties having a population in excess of 80,000.

3. Under the terms of 20 O.S.1961, Sec. 161, construed together with the provisions of 20 O.S.1961, Sec. 182, there exists no statutory authority for the establishment of a superior court in Kay County.

4. Where the Governor, in reliance upon a requested opinion of the Attorney General advising him that a judicial office does in fact exist, fills a vacancy in the supposed office, and the appointee proceeds to discharge the duties thereof before a decision is reached by this court holding such office to be non-existent, it would be contrary to public policy to strike down, as void, the judicial acts of such appointee.

5. The official acts of a de facto judge are as valid and binding as those of a de jure judge.

6. Under the terms of Sec. 2, Art. 7, Oklahoma Constitution, the Supreme Court is vested with the general superintending control over all courts inferior to it, and when an appointment is made to fill an office not sanctioned by law and the continuing existence of such office constitutes a usurpation of jurisdiction conferred by the constitution upon another court, such usurpation must be restrained and the Supreme Court will issue a writ of prohibiting such usurpation.

Original proceeding by William W. Rucker, a citizen and resident taxpayer of Oklahoma County, to prohibit honorable G. Michael Tapp, Judge of the Superior Court of Oklahoma County, from completing the empaneling of a grand jury and from exercising any judicial authority in cause no. 219 in the superior court of Oklahoma County. Honorable Raymond A. Trapp, Judge of the superior court of Kay County, was granted leave to intervene in the proceeding.

B. H. Carey, John E. Green, O. A. Cargill, Oklahoma City, for petitioner.

Grove, Winters & Cloud, Robert G. Grove, James H. Harrod, County Atty. of Oklahoma County, and John M. Amick, Asst. County Atty., of Oklahoma County, Oklahoma City, for respondent.

Maurice H. DeFord, Jr., Duffy & Johnson, Ponca City, James W. Burger, Blackwell, P. E. Irby, James Duley, Northcutt & Northcutt, Felix Duvall, Leonard Geb, Armstrong, Burns & Baumert, Tom L. Irby, Joseph P. Davies, Roy E. Grantham, George Miller, Lester R. Maris, Marland Johnson, Kent Phipps, O. S. Ellifrit, Donald C. Welch, Charles A. Johnson, Ponca City, R. L. Stimpert, Howard Wilson, Cox & Buhrman, Rodgers & Gurley, Blackwell, Clyde Heltzel, Elmer Rutherford, Robert Colcombe, Tonkawa, Ralph C. Haynes, County Atty. of Kay County, Oklahoma, Newkirk, for intervenor, Hon. Raymond A. Trapp.

Crowe, Boxley, Dunlevy, Thweatt, Swinford & Johnson, Stagner, Alpern & Powers, Leroy Powers, Wheeler, Parsons, Wheeler, Hampton & Kessler, Spencer Lynn, Smith, Jones & Neuffer, McClelland, Collins, Sheehan, Fauss, Bailey & Bailey, Jay R. Bond, J. A. O'Toole, Berry & Berry, Caldwell & Warren, George Caporal, Hubert Gibson, John D. Cheek, Duke Duvall, Fred M. Black, Fred V. Otto, Fred S. Sanchez, Jimmy Birdsong, Paul Duncan, Frank Miskovsky, Farmer, Kerr & Moslander; George W. Gay, Robert Sherman, Fred M. Mock, Ben Lampkin, Jr., Elliott Fenton, Charles E. Malson, Keys & Theimer, Howard Triggs, Merson & Campbell, Jerry Dick, Harry Merson, Erman S. Price, Richard Swart, Morrison, Rinehart & Cook, Loyd Benefield, Leon Shipp, James W. Shepherd, E. E. Zamrzla, R. R. Williamson, Jr., H. Cook, Oklahoma City, for amici curiae.

PER CURIAM.

The object of this original proceeding is to prohibit the respondent (designated in the caption as 'Honorable G. Michael Tapp, assuming to act as Judge of the purported Superior Court of Oklahoma County, Oklahoma') from completing the impaneling of a grand jury and from exercising any judicial authority in Cause No. 219 upon the docket of the Superior Court of Oklahoma County, Oklahoma.

Petitioner--a citizen and resident taxpayer of Oklahoma County--contends that the Superior Court of Oklahoma County is not a legally constituted tribunal since there is no statutory authority for its establishment.

The legal existence of the Superior Court of Oklahoma County depends upon the scope of 20 O.S.1961 § 161. With a view of affording greater clarity in reading, the cited enactment is set forth below in a dismembered form, with an identifying mark placed opposite each separated part:

I. 'There is hereby created and established in every county in this State having a population of 33,000 or more and not exceeding 80,000,

(a) and having a city therein with a population of 18,000, or more and not exceeding 50,000,

(b) and in every county having a city other than the county seat city with a population of 10,000, or more and not exceeding 50,000 II. as now or hereafter shown by the preceding Federal census, a court of civil and criminal jurisdiction coextensive with the county to be known as the superior court of such county, which shall be a court of record and shall be held in the largest city of such county.' (Emphasis ours).

Respondent contends that the Superior Court was created in Oklahoma County pursuant to the provisions of part (b) and urges that such part is entirely unrestricted by the county population requirements of part (I). On the other hand, petitioner urges that under Sec. 161 a superior court may not be established in a county which, though possessing the urban characteristics of part (b), fails to meet the county population requirements of part I.

This places in issue the following question: Does Sec. 161 authorize the establishment of superior courts (1) In every county having a population of 33,000, or more, and not exceeding 80,000, which has a city therein with a population of 18,000, or more, and not exceeding 50,000; and (2) In every county which has a city therein, other than the county seat, with a population of 10,000, or more, and not exceeding 50,000, independent and regardless of the county population? Reduced to more specific terms: Does part (b) 'and in every county having a city other than the county seat city with a population of 10,000, or more and not exceeding 50,000', operate to create a separate and distinct class of counties in which Superior courts shall be established, independent of any county population requirement?, or is part (b) restricted by the county population requirement of part (I) in the same manner that part (a) is so restricted? (See, Hamrick v. George, Okl., 378 P.2d 324, wherein we, in effect, held that part (a) is restricted by the county population requirements of part (I).

Respondent urges that the enactment is 'plain and unambiguous', and hence there is no room left for judicial construction. According to this argument, it is obvious that part (b) provides for the establishment of a superior court in every county of the State which has a city therein, other than the county seat, with a population of 10,000, or more, and not exceeding 50,000. If it be conceded, arguendo, that part (b) should be so understood, and the words 'and in every county' were to receive what is urged to be their literal meaning, our problem in this case would nonetheless remain unsolved.

In 50 Am.Jur., Statutes, Sec. 226, p. 209, it is stated:

'* * * use may be made by the courts of aids to the construction of the meaning of words used in a statute, even where, on superficial examination, the meaning of the words seems clear. Ambiguity of statutes may arise otherwise than from fault of expression. An ambiguity justifying the interpretation of a statute, is not simply that arising from the meaning of particular words, but includes such as may arise in respect to the general scope and meaning of a statute when all its provisions are examined. The courts regard an ambiguity to exist where the legislature has enacted two or more provisions or statutes which appear to be inconsistent. There is also authority for the rule that uncertainty as to the meaning of a statute may arise from the fact that giving a literal interpretation to the words would lead to such unreasonable, unjust, impracticable, or absurd consequences as to compel a conviction that they could not have been intended by the legislature. * * *'. (Emphasis ours.)

As stated in the quoted text, it is not necessary that uncertainty or inconsistency be apparent in the particular words, phrase or clause under consideration; it may arise from the general scope and meaning of the language of a statute, when all of its provisions are examined as a totality. In Sutherland, Statutory Construction, 2 Vol., Sec. 4706, p. 339, it is held:

'The literal interpretation of the words of an act should not prevail if it creates a result contrary to the apparent intention of the legislature and if the words are sufficiently flexible to admit of a construction which will effectuate the legislative intention. The intention prevails over the letter, and the letter must if possible to read so as to conform to the spirit of the act. *...