State ex rel. West v. Cobb
| Decision Date | 14 September 1909 |
| Docket Number | Case Number: 676 |
| Parties | STATE ex rel. WEST, Atty. Gen., v. COBB, County Judge. |
| Court | Oklahoma Supreme Court |
¶0 1. COURTS--Supreme Court--Original Jurisdiction--Leave to Proceed. When the ordinary original jurisdiction of the Supreme Court is invoked, leave to proceed must in all cases be first obtained from the court itself upon a prima facie showing that the cause is a proper one for its cognizance.
2. JURY--Right to Trial by Constitutional Guaranty. The right of trial by jury, declared inviolate by section 19, art. 2, p. 83, Snyder's Const. Okla., except as modified by the Constitution itself, means the right as it existed in the territory at the time of the adoption of the Constitution.
3. JURY--Right to Jury Trial--Quo Warranto. The law in force in the territory at the time of the admission of the state gave a respondent, in an action in the nature of quo warranto, a right to a trial by jury of all issues of fact, and this right remains in force in the state.
4. JURY--Jurisdiction--Supreme Court--Quo Warranto. The Supreme Court has jurisdiction of original actions in the nature of quo warranto when the issues involved are publici juris, but where on the bringing of such action it is made to appear that an issue of fact is involved or will be involved, and that a jury will be demanded for the trial thereof, the same will be dismissed, as no power or procedure exists in this court for summoning, impaneling, or paying a jury. Nor have we any warrant for sending the action to any other tribunal possessing such authority for trial of such issues.
Chas. West, Atty Gen., and W. C. Reeves and Chas. L. Moore, Assts. Atty. Gen., for the State, citing: U. S. v. Railroad Co., 3 Okla. 404; In re Epley, 10 Okla. 631; State ex rel. v. Railway Co. (Opinion of Justice Burford) 2 Okla. 112; Wheeler v. Caldwell (Kan.) 75 P. 1031; State ex. rel. v. Moores (Neb.) 76 N.W. 530; State ex rel. v. Vail, 53 Mo. 97; State v. Allen, 5 Kan. 213; State v. Foster, 32 Kan. 14; Chumasera v. Potts, 2 Mont. 242; Ex parte People, 1 Cal. 85; State ex rel. v. Choteau Co., 13 Mont. 33; State ex rel. v. Tracy, 94 Mo. 217; Com. v. Barroux, 36 Pa. 262; People ex rel. v. Clerk, 22 Colo. 280; 2 Bailey on Jurisdiction, secs. 490, 491; Cohen v. Virginia, 6 Wheat. 404; Brisco v. Com., 11 Pet. 312; Worcester v. Georgia, 6 Pet. 541; Kimball v. Neal, 44 Vt. 567, Dunphy v. Belden, 57 Cal. 427; State v. Brown, 5 R.I. 1; State ex rel. v. Kent, 1 L. R. A. (N. S.) 826; Wolff v. Mathews, 39 Mo. App. 376; Hutsonpiller v. Stover, 12 Grat. (Va.) 579; Chicago, etc. v. Chase Co., 42 Kan. 223; Kentucky v. Denison, 24 How. 66; State ex rel. v. Superior Court (Wash.) 42 P. 123; State v. Sharp, 27 Minn. 39; Mayor, etc., v. Dragan, 45 Ala. 310; Minn v. Hitchcock, 185 U.S. 384; Steamer St. Lawrence, 1 Black. 266; Fisher v. Cockerell, 5 Pet. 259; Bradford v. Territory ex rel., 2 Okla. 228; State ex rel. v. Wilson, 30 Kan. 661; Goodacre v. Skinner, 47 Kan. 579; Douglass v. Rinehart, 5 Kan. 393; Matney v. King, 20 Okla. 22.
Davis & Davis and B. B. Blakeney, for defendant, citing: People v. Board of Trade, 193 Ill. 577; In re Burnette, 73 Kan. 609; State v. Breese, 15 Kan. 101; State v. Foster, 106 La. 425; State v. Tracey, 94 Mo. 217; Ex parte McAnally, 199 Mo. 512; Armstrong v. Mayer, 6 Neb. 355; In re Hemil, 9 S.D. 390; Everett v. Hughes Co., 1 S.D. 365; State v. McLean County, 11 N. D. 356; Ex parte Doyle (W. Va.) 57 S.E. 824; Ex parte Royall, 117 U.S. 241; Ex parte Huntington, 137 U.S. 63; Ex parte Ivey, 26 Fla. 542; State v. Stewart, 32 Mo. 379; Territory v. Railway Co., 2 Okla. 108.
Original action in the nature of quo warranto by the State, on relation of Charles West, Attorney General, against T. S. Cobb, County Judge. Action dismissed.
Chas. West, Atty Gen., and W. C. Reeves and Chas. L. Moore, Assts. Atty. Gen., for the State
Davis & Davis and B. B. Blakeney, for defendant
¶1 This is an original action in the nature of quo warranto, brought on the relation of the Attorney General, for the purpose of ousting the respondent, T. S. Cobb, from the office of county judge of Seminole county. Upon presentation of the petition a citation was issued to said respondent to show cause, if any he had, why the writ as prayed for should not issue. A return to this citation was made, in which the provisions of rule 14 of this court were invoked, alleging that the petition and affidavit filed by the Attorney General did not bring this case within it. It was further set forth that the witnesses for both the state and defendant were residents of Seminole county, and that it would be unjust and inequitable to respondent to subject him to the outlay and expense incident to a trial at the capital; that the cases pending on indictment referred to in the brief of the Attorney General had been dismissed for want of prosecution on the part of the state, and further, that the state could secure a fair and impartial trial in Seminole county; that the jurors of said county were honest, upright citizens, and would try and determine the cause justly and correctly. To this return are attached the affidavits of a large number of witnesses showing residence within the county of Seminole, and averring that the sentiment of the people of Seminole county is in favor of law and order and against lawlessness, and that as a whole they believe in the enforcement of the criminal laws of the state; that if defendant has committed violations of law sufficient to warrant his removal from office a jury could easily be found in that county which would not hesitate to render a verdict against him. In addition to the foregoing it is stated by the respondent, in his brief, that it is obvious to the court that the answer of defendant would raise an issue of fact which would necessitate a trial of same by a jury. The question of whether or not the defendant would be entitled to such trial by jury, and whether or not this court could grant him the same, should it be within his rights to have it, are, with the other questions suggested, thoroughly briefed and argued by counsel for both parties.
¶2 Section 2, art 7, under the title of Judicial Department, of the Constitution, provides in part:
"The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs as may be provided by law, and to hear and determine the same."
¶3 Rule 14 of this court, (20 Okla. x, 95 P. vii) provides that:
"In all original actions or proceedings instituted in this court, it shall be necessary for the plaintiff or applicant for the writ to state fully, by affidavit, the reasons why the action or proceeding is brought in this court instead of one of the inferior courts having jurisdiction."
¶4 The Attorney General contends that he has the right to select this forum, independent of this rule, because of the fact that jurisdiction of this particular proceeding has been vested herein.
¶5 The Constitution of the state of Wisconsin contains a provision with reference to actions of this character similar to our own. Its Supreme Court likewise had a rule to the same effect. The rule adopted by that court in reference to its jurisdiction was followed by this court in the case of Homesteaders v. McCombs, ante, p. 201, 103 P. 691. That court in the case of State v. St. Croix Boom Corporation et al., 60 Wis. 565, 19 N.W. 396, held that:
"When the original jurisdiction of the Supreme Court is invoked, leave to proceed must, in all cases, be first obtained from the court itself, upon a prima facie showing that the cause is a proper one for its cognizance."
¶6 The foregoing rule was there held to apply equally to the Attorney General with all other litigants. We have careful considered the affidavit filed by the Attorney General in connection with the affidavits filed by the defendant; and, while in no way disparaging the citizenship of Seminole county, which we doubt not is as high in that as of any other community in the state, we are constrained, in view of the presentation made in the affidavits, oral argument, and briefs, to hold that they fairly respond to the requirements of the rule mentioned, provided the action is of such a character as to come within the doctrine of the case of Homesteaders v. McCombs, supra. In that case Justice Williams, who prepared it, has collated, and cited a great number of authorities on this proposition, and has therein announced the rule that this court has not jurisdiction in mandamus, quo warranto, etc., proceedings, except where the question involved is publici juris, thereby relieving us of a discussion of it in this opinion. The present case, involving the question of the removal of a county judge for misconduct and malfeasance in office, in our judgment, considering the averments in the petition and affidavit along with the other showing made, presents, when all of these and the surrounding facts are fully taken into consideration, such a peculiar situation that this court is justified in and should take jurisdiction.
¶7 It is insisted by the Attorney General that the defendant is not entitled to a jury trial herein as a matter of right, and that if he is entitled to a jury trial, the machinery of the court is adequate to grant it to him. Section 19, art. 2, of the Bill of Rights of the Constitution, provides:
"The right of trial by jury shall be and remain inviolate."
¶8 The construction of this general guaranty of the Constitution has been before the courts in a great many cases. The Supreme Court of Washington, in the case of State v. Doherty, 16 Wash. 382, 47 P. 958, 58 Am. St. Rep. 39, which was likewise a proceeding in quo warranto, held in the syllabus that:
"The constitutional provision declaring that 'the right of trial by jury shall remain inviolate' has reference to the right to jury trial as it existed in the territory at the time when the...
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