State ex rel. Smith v. Brown, Case Number: 741

• Court: Supreme Court of Oklahoma
• Writing for the Court: WILLIAMS, J.
• Citation: 103 P. 762,1909 OK 199,24 Okla. 433
• Parties: STATE ex rel. SMITH v. BROWN, Judge.
• Docket Number: Case Number: 741
• Decision Date: 13 July 1909

1909 OK 199
103 P. 762
24 Okla. 433

STATE ex rel.
SMITH
v.
BROWN, Judge.

Case Number: 741

Supreme Court of Oklahoma

Decided: July 13, 1909

Syllabus

¶0 1. OFFICERS--Removal--Civil Action. A proceeding instituted for the removal of an officer under section 23, art. 3, c. 69, pp. 611, 612, Sess. Laws. 1907-08, is a civil action.

2. VENUE--Prohibition--Change of Venue--Discretion of Court--Grounds of Relief. Section 4256, Wilson's Rev. & Ann. St. 1903 (Code Civ. Proc. sec. 58), and section 10, c. 68, art. 1, p. 592, Sess. Laws 1907-08, of an act entitled "An act designating the counties in which civil actions may be brought, and declaring an emergency," relating to a change of venue, on account of the bias and prejudice of the judge in civil cases, are not imperative or mandatory, and do not require the granting of such change upon any showing made therefor; but the court is vested with a judicial discretion upon such showing made therefor by the applicant in granting or refusing the same.

2a. Where an inferior tribunal has jurisdiction to take the action contemplated under any circumstances involving a judicial discretion, a writ of prohibition will not lie to control such action. It is only where such inferior tribunal is wholly unauthorized by law to take such action that the writ will lie.

3. STATUTES--Constitutional Law--Applicability of General Law as Affecting Special Law--Review by Courts--Self-Executing Provisions. Section 23, art. 3, c. 69, Sess. Laws 1907-08, is not repugnant to section 59, art. 5 (Bunn's Ed. sec. 132; Snyder's Ed. p. 181), of the Constitution, which provides that "laws of a general nature shall have uniform operation throughout the state, and where a general law can be made applicable, no special law shall be enacted."

3a. As a rule, what can be accomplished by general or special legislation is left to the Legislature for its determination, and its action or discretion in that respect, with few exceptions, is not reviewable by the courts.

3b. Section 6, art. 2 (Bunn's Ed. sec. 15; Snyder's Ed. p. 21), of the Constitution, providing that "right and justice shall be administered without * * * prejudice," is self-executing.

Original application for a writ of prohibition by the State, on relation of O. O. Smith, to be directed to G. A. Brown, Judge of the Eighteenth District Court Judicial District. Writ denied.
On the 1st day of April, A. D. 1909, O. O. Smith, as relator, filed his verified petition in this court for a writ of prohibition against the respondent, G. A. Brown, judge of the Eighteenth District Court Judicial District of the state of Oklahoma, praying that he be prohibited from further proceeding in a certain cause pending in the district court of Beckham county, state of Oklahoma, entitled State of Oklahoma ex rel. Fred S. Caldwell, as Counsel to the Governor, Plaintiff, v. O. O. Smith, County Attorney, as defendant; that on the 19th day of March, A. D. 1909, said defendant filed in said cause an affidavit alleging bias and prejudice against the respondent, and asking for a change of judge therein; that said respondent thereafter proceeded to take testimony in said cause, and advised the defendant that he would take further testimony therein at Arnett, in Ellis county, Okla., on the 5th day of April, A. D. 1909. Said affidavit was in part as follows:
"That affiant has reason to believe, and does believe, that the regular presiding judge of the Eighteenth judicial district, to wit, the Hon. G. A. Brown, is so biased and prejudiced against this defendant that he cannot have a fair and impartial trial before said judge on account thereof. That said judge, the Hon. G. A. Brown, conducted a special, and as this affiant believes an unauthorized, 'court of inquiry' in this county about January 28, 1909, for the avowed purpose of finding evidence on which to base a charge against this defendant as is presented in the petition in this case. That affiant is informed and verily believes from conversations had with said judge that he is so prejudiced and biased that affiant cannot by reason thereof have a fair and impartial trial of the issues here presented before him. Affiant further alleges that he has reasons to believe, and does believe, that the action taken in this case on behalf of the state of Oklahoma was taken by the said Fred S. Caldwell on the direct advice and at the solicitations of the said Judge G. A. Brown. That on the 8th day of this month, to wit, March 8, 1909, this defendant submitted to the court his motion, requiring the plaintiff to make his petition more definite and certain in each paragraph thereof, and which said motion was by the court sustained as to the first count, and thereupon the plaintiff was given 10 days to file his amended petition, and that thereafter, and at a time unknown to this affiant, the said G. A. Brown had a conversation and consultation with the said Fred S. Caldwell, when the said court, at a time out of the courtroom, and without the knowledge or consent of this affiant, extended the time which the plaintiff was to be given to make his petition more definite and certain to the term of 30 days, and as this affiant believes, to have this case carried over this term of court, and after the adjournment thereof, and with the intent then and there on the part of the said Fred S. Caldwell and the said Hon. G. A. Brown to suspend affiant from office pending the trial of the issues in this case, and of preventing affiant from having a trial within the time contemplated by the said law. Wherefore, affiant prays that a change of judge be allowed on account of the above prejudice of the Hon. G. A. Brown, and that some judge not prejudiced against this defendant be designated to hear and to determine this case. Defendant further asks that this case be set for a trial at once, that he may be given an opportunity to show the facts alleged in the petition to be false."
A preliminary writ issued as prayed for, returnable on the 20th day of April, A. D. 1909. On said date the respondent appeared by counsel, and pleaded that the preliminary writ should not have been issued because the petition therefor does not set forth facts sufficient in law to constitute a cause of action against the respondent. Respondent further answered, admitting that there was an action pending in the district court of Beckham county, state of Oklahoma, as alleged, and that notice and summons of said proceedings had been duly served upon the defendant, and said cause was set for hearing in the district court of said county on the 8th day of March, A. D. 1909, upon a demurrer and motion to make more definite and certain plaintiff's petition, and that action upon said demurrer and motion was had substantially as alleged by relator; that thereafter, in March A. D. 1909, the plaintiff made due and sufficient application before respondent for a notice and summons to the defendant to show cause why, pending said action, the said defendant should not be suspended from the office of county attorney of said county; that due service of notice was had upon the defendant to appear at Elk City on the 26th day of March, A. D. 1909, to show cause why he should not be suspended from office pending the trial of said cause; that on said 26th day of March, A. D. 1909, respondent convened and held a session in chambers at the opera house in the city of Elk City, Okla., and the said defendant, O. O. Smith, appeared in person and by his attorneys, Harrison & Hendrix, and the respondent proceeded to hear the matter for cause why the said defendant should not be suspended from the office of county attorney of Beckham county, Okla., that at the beginning of said session in chambers at said time and place it was called to respondent's attention of the existence and filing, on the 19th day of March, A. D. 1909, of an affidavit for a change of judge, which affidavit is in substance as set out in the application of relator for writ of prohibition; that the matter as set forth in said affidavit for a change of judge was unknown to the respondent until the time it was called to his attention as stated, whereupon the respondent proceeded to hear the argument of counsel for the plaintiff and defendant, O. O. Smith; that the entire day of the hearing, to wit, March 26, A. D. 1909, was consumed in argument and consideration of said affidavit; that on the 27th day of March, A. D. 1909, at the convening of said session in chambers at the same place, consideration of said affidavit was resumed, and the re-respondent had previously advised counsel for plaintiff and defendant that said session would be adjourned by noon of the 27th day of March, A. D. 1909, for the reason that respondent was convening court at Taloga, Dewey county, Okla., on the 29th day of March, A. D. 1909, and the intervening time would necessarily be spent in traveling from Elk City to Taloga; that at the morning session of the 27th day of March it became apparent that there was not sufficient time at the disposal of respondent in which all the evidence of both plaintiff and defendant could be submitted, and respondent further was not sufficiently advised as to the law applicable to the affidavit for change of judge; that respondent accordingly announced to both parties, and their counsel, that he would reserve a judicial determination on the affidavit as filed until the 5th day of April, A. D. 1909, and that on said date at Arnett, Ellis county, Okla., he would render his decision, allowing or overruling said affidavit for change of judge; that to expedite matters, and for the purpose of convenience, the respondent allowed the plaintiff to submit evidence such as he had at that time to offer, and allow the defendant, O. O. Smith, the same privilege; that the plaintiff did submit numerous affidavits in evidence, and the respondent further ordered that at Arnett he would hear any other additional evidence that either the...