Wimberly v. Imel

• Decision Date: 22 February 1961
• Docket Number: No. A-12947,A-12947
• Citation: 358 P.2d 231
• Parties: William L. WIMBERLY, Petitioner, v. John M. IMEL, Municipal Judge, and Robert Mawhinney, Alternate Judge, of the Municipal Criminal Court of the City of Tulsa, Oklahoma, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 231

358 P.2d 231

William L. WIMBERLY, Petitioner, v.John M. IMEL, Municipal Judge, and Robert Mawhinney Alternate Judge, of the Municipal Criminal Court of the City of Tulsa, Oklahoma, Respondents.

No. A-12947.

Court of Criminal Appeals of Oklahoma.

Feb. 22, 1961.

Syllabus by the Court.

1.A prerogative writ of prohibition should be issued with forbearance and caution and only in cases of necessity and not in doubtful cases.

2.The Court of Criminal Appeals does not favor the testing of the constitutionality of a city ordinance by a writ of prohibition, but has the right to grant the writ and will do so where there is not an adequate remedy at law.

An application for a writ of prohibition by William L. Wimberly, a professional bondsman, to prohibit the judges of the Municipal Criminal Court of the City of Tulsa, Oklahoma, from proceeding to try him on a charge of violating a city ordinance.Writ denied.

John L. Ward, Jr., Tulsa, Valdhe F. Pitman, Oklahoma City, for petitioner.

Charles E. Norman, City Atty., Henry Kolbus, Asst. City Atty., Tulsa, for respondents.

BUSSEY, Judge.

The petitioner, William L. Wimberly, a professional bondsman in the City of Tulsa, Oklahoma, seeks a writ of prohibition against the judges of the Municipal Criminal Court of Tulsa, Oklahoma, preventing them from proceeding to try him on a charge of violating City OrdinanceNo. 6072, § 16(b), the material part of which is:

'A professional bondsman shall not enter a jail, or other place where persons charged with offenses cognizable by the Municipal Court of the City of Tulsa are detained in the City of Tulsa for the purposes of obtaining employment as a bondsman, without having been previously called by a person so detained or by some relative, or other person or officer authorized by and acting for and on behalf of the person so detained.'

The petitioner urges that he is entitled to relief by reason of the unconstitutionality of said ordinance, in that it is in conflict with 18 O.S.1951 § 481 et seq. of the Oklahoma Statutes.It should be noted at the outset that none of the provisions of 18 O.S.1951 § 481 et seq. attempt to regulate city jails.

The petitioner further contends that the 'licensing provision' of the ordinance is in conflict with the statutory provisions cited above, in that the State has exercised a preemptive right to regulate the licensing of professional bondsmen and surety companies and that the ordinance is therefore unconstitutional.Since it appears that the petitioner has paid the licensing fee and met the other requirements established by the ordinance in question, the constitutionality of the 'licensing provision' is not properly before this court.

'The prerogative writ of prohibition should be issued...