State v. Huston

• Decision Date: 29 August 1908
• Citation: 97 P. 982,21 Okla. 782,1908 OK 157
• Parties: STATE ex rel. HASKELL, Governor, v. HUSTON, Judge of Eleventh Judicial District, et al.
• Court: Oklahoma Supreme Court

97 P. 982

21 Okla. 782, 1908 OK 157

STATE ex rel. HASKELL, Governor, v. HUSTON, Judge of Eleventh Judicial District, et al.

Supreme Court of Oklahoma

August 29, 1908

On Rehearing, November 10, 1908.

Syllabus by the Court.

The powers of the Governor are defined by the Constitution. By that part of article 6, § 8, which provides that he shall cause the laws to be faithfully executed, he is empowered to institute a suit for and in the name of the state.

[Ed Note.-For other cases, see States, Cent. Dig. § 185; Dec Dig. § 192. ^[*]]

Under Wilson's Rev. & Ann. St. Okl. 1903, § 6567, the Attorney General has no power to bring suit in the name of the state or prosecute or defend the same in the district courts of the state, in any civil or criminal cause in which the state may be a party or interested, except when requested by the Governor or either branch of the Legislature.

[Ed Note.-For other cases, see Attorney General, Cent. Dig. § 8; Dec. Dig. § 7. ^[*]]

Prohibition is the proper remedy, where an inferior court assumes to exercise judicial power not granted by law, or is attempting to make an excessive and unauthorized application of judicial force in a cause otherwise properly cognizable by it.

[Ed. Note.-For other cases, see Prohibition, Cent. Dig. §§ 20-30; Dec. Dig. § 5. ^[*]]

Application by the state, on the relation of C. N. Haskell, governor, for a writ of prohibition to A. H. Huston, Judge, and Charles West, Attorney General. Rule made absolute.

On July 28, 1908, the state of Oklahoma, at the relation of C. N. Haskell, as governor, filed in this court a petition, wherein A. H. Huston, judge of the eleventh judicial district, and Charles West, Attorney General, were named as respondents, for a writ of prohibition, in which he states, in substance, that he is, and was at all times thereinafter mentioned, the Governor of the state of Oklahoma; that respondents are, and were during that time, respectively, the judge of the eleventh judicial district and the Attorney General; that theretofore, to wit, on the _____ day of July, 1908, said West, as Attorney General, and as relator, brought suit in the name of the state, as plaintiff, without the direction, request, or authority of relator, against the Prairie Oil & Gas Company, a foreign corporation, to restrain it from committing a nuisance in the alleged improper use of the highways of the state, and to forfeit its charter for an alleged failure to comply with the laws of the state, and oust it from doing business in the state; that on the same day said Huston, as judge of said court, issued a restraining order, as prayed in said suit, pending an application for a temporary injunction, which was set for hearing in Guthrie on July 9, 1908, following; that relator had caused said hearing to be postponed, pending an investigation to be made by him, as Governor; that on investigation he, as Governor, ascertained, and so set forth to the court, that it was against the interests of the people of the state that said suit be brought or further prosecuted; that it had been brought by the Attorney General without his knowledge, consent, or request so to do, and had accordingly moved the court to dismiss the same, which said court refused to do, and overruled said motion, and was proceeding, over his objection and protest, and contrary to his wishes as Governor, to hear and determine the same and issue the injunction as prayed by the Attorney General, and prayed the court's writ of prohibition forbidding said Huston, as judge aforesaid, to hold and exercise jurisdiction of said suit, and the said West, as Attorney General, from further prosecuting the same, and for general relief.

A. C. Cruce and Orville T. Smith, for relator.

Charles West, Atty. Gen., and Fielding Lewis, Asst. Atty. Gen., for respondents.

TURNER J.

In response to the rule of the court to show cause why the writ of prohibition should not issue as prayed, respondents pleaded, inter alia, that relator, as Governor, has no right to bring this suit, and this we will first determine. The right of the Governor to bring suit in the name of the state, in matters publici juris, has been conceded by the courts of last resort throughout this Union ever since the early days of this republic.

Texas v. White, 7 Wall. 700, 19 L.Ed. 227, was a suit, in the Supreme Court of the United States, in which the state of Texas claimed certain bonds of the United States as her property, and asked for an injunction to restrain defendants from receiving payment thereon from the national government, and to compel the surrender of the bonds to the state. In 1862 a military board had been established by the Legislature of the state, composed of the Governor, Comptroller, and Treasurer, which was authorized to provide for the defense of the state, by means of any bonds in the treasury, upon any account, to the extent of $1,000,000. The defense contemplated levying war against the United States. After the war was over, there were three governors of the state of Texas, a provisional governor, appointed by the president in 1865, one elected by the people in 1866, and one appointed by the commander of the district, each of whom were exercising the executive function, and actually represented the state in the executive department. This suit was brought by the consent of all three, and the only question before the Supreme Court of the United States preliminary to entertaining jurisdiction in the case was whether or not Texas was a state in the Union. That question being settled, the court proceeded to and did take jurisdiction of the case. The court said: "The necessary conclusion is that the suit was instituted, and was prosecuted, by competent authority." The decision was predicated upon the right which the Governor had, as Governor, incidental to his power as chief executive, when absolutely essential, to protect the rights of the state.

Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717, was an original petition for a mandamus, filed in the Supreme Court of the United States in the name of the commonwealth of Kentucky, by Beriah Magoffin, Governor, for a rule on William Dennison, Governor of Ohio, to show cause why a mandamus should not be issued by that court, commanding him to show cause why Wilis Lago, a fugitive from justice, should not be delivered up to be removed to the state of Kentucky. The court, in discussing the question of jurisdiction, and as to how a state should sue and be sued, said, quoting from Chisholm v. State of Georgia, 2 Dall. 419, 1 L.Ed. 440: "It has been settled by our predecessors, on great deliberation, that this court may exercise its original jurisdiction in suits against a state, under the authority conferred by the Constitution and existing acts of Congress. The rule respecting process, the persons on whom it is to be served, and the time of service, are fixed." Speaking of the rule as laid down in Grayson v. Virginia, 3 Dall. 320, 1 L.Ed. 619, and ever since followed, the court said: "That when process at common law or in equity shall issue against a state, the same shall be served upon the Governor or chief executive magistrate, and the Attorney General of such state." In speaking as to how suits are entitled when brought by the state, the opinion further says: "In the case of Georgia v. Madrazo, 1 Pet. 110, 7 L.Ed. 73, it was decided that, in a case where the chief magistrate of a state is sued, not by his name as an individual, but by his style of office, and the claim made upon him is entirely in his official character, the state itself may be considered a party on the record. This was a case where the state was the defendant. The practice, where it is plaintiff, has been frequently adopted of suing in the name of the Governor, in behalf of the state, and was indeed the form originally used, and always recognized as the suit of the state. Thus, in the first case to be found in our reports in which a suit was brought by the state, it was entitled, and set forth in the bill, as the suit of 'The State of Georgia, by Edward Tellfair, Governor of said State, Complainant, v. Samuel Brailsford et al.,' 2 Dall. 402, 1 L.Ed. 433, 438, and the second case, which was so early as 1793, was entitled and set forth in the pleadings as the suit of 'His Excellency, Edward Tellfair, Esq., Governor, Commander in Chief in and over the State of Georgia, in Behalf of Said State, Complainant, v. Samuel Brailsford et al., Defendants."' The court in closing said: "We may therefore dismiss the question of jurisdiction without further comment, as it is very clear that, if the right claimed by Kentucky can be enforced by judicial process, the proceeding by mandamus is the only mode by which the object can be accomplished."

The state of New Jersey v. State of New York, 5 Pet. 284, 8 L.Ed. 127, was a bill filed by the former in the Supreme Court of the United States, for the purpose of ascertaining and settling the boundary between the two states. Chief Justice Marshall in passing said: "The Constitution of the United States declares that 'the judicial power shall extend to controversies between two or more States.' It also declares that 'in all cases affecting ambassadors, other public ministers, and consuls and those in which a state shall be a party, the Supreme Court shall have original jurisdiction.' Congress has passed no act for the special purpose of prescribing the mode of proceeding in suits instituted against a state, or in any suit in which the Supreme Court is to exercise the original jurisdiction conferred by the Constitution. *** At a very early period of our judicial history suits were instituted in this court against states, and the questions concerning its jurisdiction and the mode of proceeding were...