Vogel v. Corp.

• Decision Date: 13 January 1942
• Docket Number: Case Number: 29592
• Citation: 121 P.2d 586,190 Okla. 156,1942 OK 14
• Parties: VOGEL v. CORPORATION COMMISSION
• Court: Oklahoma Supreme Court

1942 OK 14

121 P.2d 586

190 Okla. 156

VOGEL v. CORPORATION COMMISSION

Case Number: 29592

Supreme Court of Oklahoma

Decided: January 13, 1942

Syllabus

¶0 1. JURY--Constitutional guaranty of right to trial by jury not applicable to proceeding before Corporation Commission to punish for contempt of its order.

The provisions of section 20, art. 2, Constitution of Oklahoma that: "In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed are not applicable to a proceeding before the Corporation Commission to punish for contempt of its order for the reason that contempt is not a crime but sui generis and the prosecution therefor is not a criminal but a special proceeding.

2. JURY--Right to jury trial in contempt proceeding dependent on constitutional or statutory provision.

A respondent in a contempt proceeding is not entitled to a trial by jury except where a jury trial is expressly provided by Constitution or statute, and then only in the particular causes to which the Con. stitution or statutory provision applies.

3. SAME--Rule not affected by fact that act of contempt may also be an offense subject to prosecution by indictment or information.

The fact that the act constituting the contempt may also be an offense subject to prosecution by indictment or information does not affect the rule where the proceedings are not by indictment or information.

4. SAME--Petitioner not entitled to trial by jury in contempt proceeding before Corporation Commission for violation of order relating to inspection of petroleum products issued under statutory authority.

Petitioner is not entitled to a trial by jury in a proceeding for contempt before the Corporation Commission for violation of its order issued under authority of article 2, ch. 59, S. L. 1939, and intended by the Legislature to authorize the exercise of police powers and restrain the sale of inferior petroleum products.

5. JURY--"Right of trial by jury" as guaranteed by Constitution.

Section 19, art. 2, Constitution of Oklahoma, "the right of trial by jury shall be and remain inviolate," granted no new right but preserved the right of trial by jury in all cases where that right existed at common law.

6. SAME--Right of trial by jury in contempt did not exist at common law.

The right of trial by jury in contempt of any kind did not exist at common law.

7. SAME--Constitutional and statutory provisions relating to right to jury trial in contempt proceedings not applicable to contempt proceeding before Corporation Commission for violation of its order.

The provisions of section 25, art. 2, Constitution of Oklahoma, providing that for violation, not in the presence or hearing of the court, or judge sitting as such, of any order of injunction, or restraint, made or entered by any court or judge of the state, an accused shall be entitled to a trial by jury, and the provisions of 21 Okla. Stat. Ann. § 565, defining contempts, and section 567, regulating proceedings in matter of contempt, are not applicable to a proceeding before the Corporation Commission. to punish for contempt of its order for or the reason that the Corporation Commission is not a court, the comissioners thereof are not judges, and contempt of an order of the Corporation Comission is undefined, and being so, is governed by the common law as construed and modified only by limitations of Constitution and statutes specifically applicable to such contempt.

Original action for writ of prohibition by Walter Vogel against the Corporation Commission of the State of Oklahoma. Writ denied.

Clay M. Roper, L. D. (Buck) Hoyt, and Win. L. Murphy, all of Oklahoma City, for petitioner.

Earl Foster, Floyd Green, Arthur Hughes, and James C. Hamill, all of Oklahoma City, for respondents.

George H. Bowen and W. F. Semple, both of Tulsa, R. L. Gordon, of Bartlesville, Donald Campbell, W. P. Z. German, L. G. Owen, M. Darwin Kirk, and Alvin Richards, all of Tulsa, and Warren B. Kice, of Ada, amici curiae.

RILEY, J.

¶1 This is an original action by which petitioner seeks prohibition to stay and stop proceedings against him for contempt pending before the Corporation Commission. In those proceedings petitioner is charged with violation of order No. 13025 of the Corporation Commission, issued under authority of article 2, ch. 59, S. L. 1939, designed to prevent the sale of inferior petroleum products.

¶2 A written accusation in the nature of a citation in the name of the State of Oklahoma was served on petitioner, a bulk station operator and resident of Craig county, wherein there was detailed, under three counts, petitioner's sales in Craig county of gasoline of a quality inferior to the minimum requirements of Rule 9, order No. 13025, supra.

¶3 Petitioner made return of the citation served upon him, appeared before the Corporation Commission, pleaded unconstitutionality of the act, supra, under authority of which the orders, supra, were issued, the resultant lack of jurisdiction of the Corporation Commission to proceed in the cause for contempt. A demand was made for a jury trial in Craig county. These pleas being overruled, the petitioner instituted in this court the instant action.

¶4 It is contended here that petitioner is entitled to a trial by jury in Craig county upon the issue of contempt proceedings against him before the Corporation Commission. It is urged that this right exists under the provisions of section 20, art. 2, Constitution of Oklahoma. The text of that section reads in part:

"In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed ......

¶5 Our determination of the contention is governed by answer to the query of whether the acts charged upon the petitioner constitute a crime and whether these proceedings pending before the Corporation Commission are in fact a criminal prosecution.

¶6 Answer to the query is negative. "A contempt proceeding is sui generis. It is neither civil nor criminal, but may partake of either in its nature." State ex rel. Short v. Owens, 125 Okla. 66, 256 P. 704, 52 A.L.R. 1270; Eilenbecker v. District Court, 134 U. S. 31, 10 S. Ct. 424, 33 L. Ed. 801.

¶7 A respondent in a contempt proceeding is not entitled to a trial by jury, except where a jury trial is expressly provided by statute, and then only in the particular cases to which the statute applies. The fact that the act constituting the contempt may also be an indictable offense does not affect the rule where the proceedings are not by indictment. 25 Corpus Juris 194.

¶8 By statute, section 1764, O. S. 1931, 21 Okla. Stat. Ann. § 26, it is provided:

"A criminal act is not the less punishable as a crime because it is also declared to be punishable as a contempt."

¶9 It is noted that the act of sale of inferior petroleum products sought to be prohibited by the legislative act, supra, might have been and may be punishable by indictment or information as a misdemeanor entitling the accused to a trial by jury in the county in which the acts shall have been committed; the act also declares that such an offending person shall be guilty of a contempt of the orders, rules, and regulations of the Corporation Commission made conformable to provisions of the act. It logically follows, as stated in authority heretofore cited, that the fact that the act constituting the contempt may also be an indictable offense wherein an accused would be entitled to a trial by jury, does not affect the rule in contempt proceedings (that the contemnor is not entitled to a trial by jury except where a jury trial is expressly guaranteed by law in such cases), provided the proceedings are in contempt and not by indictment.

¶10 In Pioneer Telephone & Telegraph Co. v. State, 40 Okla. 417, 138 P. 1033, this court held:

". . . Appellant is not entitled to a trial by jury in such proceedings, which is had by virtue of a police regulation incident to the exercise of powers granted to the Corporation Commission."

¶11 While in that and kindred causes, St. Louis & S. F. Ry. Co. v. State, 26 Okla. 62, 107 P. 929, and Atchison, T. & S. F. Ry. Co. v. State, 35 Okla. 532, 130 P. 940, the proceedings before the Corporation Commission were in exercise of powers conferred by the Constitution, and herein we consider power exercised by virtue of a legislative act, contemplated by the Constitution (sec. 19, art. 9, providing that the Corporation Commission may be vested with such additional power and charged with such other duties as may be prescribed by law, and section 35, art. 9, authorizing by legislative act amendment or repeal of constitutional sections 18 to 34, inclusive), the fact is, in either instance, the proceedings in contempt constituted the exercise of power under the law. Planter's Cotton & Ginning Co. v. West Brothers et al., 82 Okla. 145, 198 P. 855; Champlin Refining Co. v. Corporation Commission of the State of Oklahoma, 286 U. S. 210, 52 S. Ct. 559, 76 L. Ed. 1062; Russell v. Walker et al., 160 Okla. 145, 15 P.2d 114. By section 19, art. 9, of the Constitution, the Corporation Commission, being vested with control of certain corporations, was granted the specific power to punish for contempt, and while it is true the power was limited to "disorderly conduct in the presence of the commission," it is also true that power was extended by that text "to enforce compliance with any of its lawful orders," and to do so the commission was empowered to adjudge and enforce its own appropriate process-no provision or requirement for a trial by jury in such cases is contemplated; none exists.

¶12 The right of trial by jury in contempt of any kind did not exist at common law. State ex rel. Short v. Owens, supra; Eilenbecker v. District Court, supra. Therefore, the provisions of section 19, art. 2, Constitution of Oklahoma, that "the right of trial by jury...