State v. Lyon
| Decision Date | 15 May 1917 |
| Docket Number | 9071. |
| Citation | 165 P. 419,63 Okla. 285,1917 OK 229 |
| Parties | STATE EX REL. FREELING, ATTY. GEN., v. LYON, SECRETARY OF STATE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The delivery of commissions to notaries public throughout the state and the refusal of the secretary of state to deliver such commissions to the persons appointed by the Governor is publici juris, and this court will entertain an original action brought by the state, upon relation of the Attorney General, for mandamus directing the secretary to deliver the commissions.
It is the duty of the secretary of state to deliver the commissions to the notaries public appointed by the Governor of the state, and this duty is ministerial. Upon the refusal of the secretary to perform this duty, a writ of mandamus may issue from this court to compel him to do so.
A writ of mandamus may lawfully issue from a court having jurisdiction to compel an executive officer to perform a mere ministerial act which the law imposes upon him the duty to do.
Additional Syllabus by Editorial Staff.
"Publici juris" means "of public right," and the word "public" in this sense means "pertaining to the people, or affecting the community at large; that which concerns a multitude of people," and the word "right," as so used, means "a well-founded claim; an interest; concern; advantage; benefit," and the term "public interest" means more than a mere curiosity, and means something in which the public has some pecuniary interest, or some interest by which their legal rights or liabilities are affected.
Original action for a writ of mandamus by the State of Oklahoma, on relation of S. P. Freeling, Attorney General, against J. L Lyon, as Secretary of State. Peremptory writ of mandamus awarded.
S. P Freeling, Atty. Gen., and Jno. B. Harrison, Asst. Atty. Gen for relator.
Warren K. Snyder, E. G. McAdams, and Norman R. Haskell, all of Oklahoma City, for respondent.
This is an original action in this court for a writ of mandamus, instituted by the state of Oklahoma, upon the relation of S. P. Freeling, Attorney General, against J. L. Lyon, secretary of state.
It appears from the petition and response that Hon. R. L. Williams, Governor of the state, appointed certain persons notaries public, and the respondent, acting as secretary of state, attested the commissions as required by law, but refused to deliver them to the various persons appointed by the Governor and named in the commissions. In his response the secretary of state says, as his reasons for not delivering the commissions, the amount of money appropriated for his contingent fund for the fiscal year ending June 30, 1917, will not cover all the necessary expenditures of his office properly chargeable against that fund, and if he uses the necessary amount of that fund to defray the expenses of postage to deliver these commissions, he will not have a sufficient sum to meet the other expenses of his office which will arise before the expiration of the fiscal year. Further, he says he delivered, through the United States mail, commissions to the persons named in five cities and towns of the state, and that it appears from a tabulated statement (attached to his response) of the population of the towns in which the other persons reside there are already a sufficient number of notaries public residing in these places to properly serve the public interests, and therefore there exists no necessity to deliver the commissions in question.
Counsel for the respondent, in opposing the issuance of the writ, group their objections under four propositions: First, they challenge the jurisdiction of the court because, as they say, it appearing from the allegations of the response, and the tabulated statement attached, there is no public need for these additional notaries, the question presented to this court is not publici juris, and therefore the court ought not exercise its original jurisdiction to hear and determine the case. We agree with counsel that this court should not grant the writ unless some interest of the public is involved, or, in other words, unless the public has some right involved in the question before the court. To determine this we must consider the meaning of the terms under discussion. By "publici juris," we understand, is meant "of public right." The word "public," in this sense, means "pertaining to the people, or affecting the community at large; that which concerns a multitude of people." Webster's New International Dictionary; Greenl. Ev. 152; Stockton v. Williams, 1 Doug. (Mich.) 546; Morgan v. Cree, 46 Vt. 773, 14 Am. Rep. 640. The word "right," as used here, is defined in Bouvier's Law Dictionary as "a well-founded claim; an interest; concern; advantage; benefit." We understand "public interest" to mean more than a mere curiosity; it means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as the interests of the particular localities which may be affected by the matters in question.
The question presented here is furnishing notaries public throughout the state commissions authorizing the discharge of their duties. If the secretary of state can determine the need for notaries in any particular locality and withhold 70 commissions, as it appears in this instance he has done, what is there to prevent his withholding all the commissions issued to notaries public in the state? When we consider the office of notary public in relation to the transaction of public business--the business of the whole people of the state--and that all conveyances of real estate to be recorded, including deeds, mortgages, satisfaction of mortgages, leases, powers of attorney, affidavits, and contracts, must be acknowledged before a proper officer and authenticated by his seal of office, and that officers other than notaries authorized to take such acknowledgments are accessible to a very small per cent. of the people, we must conclude the duties of a notary public affect the pecuniary interests, legal rights, and liabilities of the public. The discharge of the duties of that office materially affect the legal rights not only of the parties to the instruments acknowledged, but also the public at large. In the proper exercise of those duties and the easy access to these officials the public is concerned and has a right, to the end that business may be dispatched without unnecessary delay and inconvenience. The respondent cannot be heard to say there is no public need for these notaries whose commissions he refuses to deliver. The law gives him no voice in the appointment. The law does not lodge with him the power or authority to determine what...
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