State ex rel. Director of the Oklahoma Alcoholic Beverage Control Board v. Smith ( 1974 )

BERRY, Justice:

Petitioner, Director of the Oklahoma Alcoholic Beverage Control Board [the “Director”], requests this Court assume jurisdiction and grant a writ of prohibition prohibiting the trial judge from proceeding further against him in the action below which W. A. Sirkel, plaintiff below [“plaintiff”], filed in the District Court of Ottawa County against the District Attorney, the Sheriff of Ottawa County, and the Director requesting injunctive relief against enforcement of Oklahoma’s open saloon laws.

The petition in the action below alleges plaintiff owns and operates a club, defendants have invidiously discriminated against him by causing his club to be raided, criminal charges to be filed against him, and threatening future actions against him without taking similar actions, or making similar threats, against other persons engaged in the same business and performing the same acts. The petition alleges the open saloon laws are unconstitutional on their face and are enforced in an unconstitutional manner and requests the trial court to enjoin defendants from further harassment, raids, arrests or trials directed against plaintiff as result of any alleged violations of the open saloon laws.

The sole question presented is whether venue is proper as to the Director in Ottawa County.

The applicable venue statute, 12 O.S.1971 § 133, provides in part as follows:

“Actions for the following causes must be brought in the county where the cause, or some part thereof arose:

“Second. An action against a public officer for an act done by him in virtue, or under color, of his office, or for neglect of his official duties.”

The parties agree the Director is a public officer, this action is brought against him for an act done by him in virtue or under color of his office, his official residence is in Oklahoma County, and the venue of the cause of action against other defendants does not establish venue of the cause of action against the Director.

On oral argument before this Court it was not contended the Director had personally committed any acts in Ottawa County, but that agents of the Alcoholic Beverage Control Board had participated in the raid upon plaintiff’s place of business.

The Director contends his official residence is in Oklahoma County; decisions by him concerning the enforcement or non-enforcement of the alcoholic beverage control laws necessarily emanate from his office in Oklahoma County, and therefore any cause of action against him arose in Oklahoma County, citing State v. District Court of Bryan County, Okl., 290 P.2d 413; State v. District Court of Nowata County, Okl., 340 P.2d 939; and State ex rel. Department of Corrections v. Brock, Okl., 513 P.2d 1293.

Plaintiff contends the cited cases are distinguishable because in each case the court determined the cause of action arose in Oklahoma County while in the present case agents of the Alcoholic Beverage Control Board were present in Ottawa County, the acts of which complaint is made were performed in Ottawa County, and injunctive relief against future acts in Ottawa County is sought. He further contends where a state officer acts through his agents in a local county, and the acts give rise to a cause of action, it is the same as if the principal officer himself were present and performing the acts, and venue for the cause of action is in the county where the acts are performed, citing United Steelworkers of America, AFL-CIO v. Doyle, Ohio Com.Pl., 150 N.E.2d 334, reversed on other grounds, 168 Ohio St. 324, 154 N.E.2d 623.

In State v. District Court of Bryan County, supra, we stated:

“ * * * In an action against a public officer, in what county, under Tit. 12, sec. 133, supra, does ‘the cause, or some part thereof arise? We think the proper decision of this question in any given case depends considerably upon its particular facts and character. * * * »

The petition in this case alleges two grounds as a basis for the injunction open saloon laws are unconstitutional (1) on their face and (2) due to the discriminatory manner in which they are enforced.

In State v. District Court of Nowata County, supra, we stated:

“ * * * in the Bryan County case we specifically held that in an action to enjoin a State Board from enforcing an alleged unconstitutional statute, the cause of action arises in the county of the Board’s official residence; and therefore by force of 12 O.S.1951 § 133, the action must be brought in such county. The fact that in the course of administering the act here involved the Board may proceed independently in the various counties is immaterial.”

Therefore, insofar as concerns the allegation open saloon laws are unconstitutional on their face, we conclude the action against the Director must be brought in the county of his official residence, Oklahoma County, and the fact the agents acted in Ottawa County is immaterial.

Any discriminatory enforcement of the open saloon laws by agents of the Alcoholic Beverage Control Board necessarily results from either a decision by the Director, or Board, to enforce the law in a discriminatory manner, or, a failure to ensure the agents are enforcing the law in a non-discriminatory manner.

Any decision by the Director to enforce the law in a discriminatory or non-discriminatory manner emanated from the county of his official residence, Oklahoma County, and therefore any cause of action arising out of that decision arose in Oklahoma County. State ex rel. Dept. of Corrections v. Brock, supra. This is so even though acts taken pursuant to that decision occurred in Ottawa County. State ex rel. Dept. of Corrections v. Brock, supra.

Likewise, any cause of action arising from the Director’s neglect to ensure the agents enforce the law in a non-discriminatory manner arises in the county where the neglect occurs, such county being the county where the Director officially resides, Oklahoma County. State v. District Court of Nowata County, supra.

Plaintiff relies upon the Ohio case of United Steelworkers of America, AFL-CIO v. Doyle, supra, wherein the court construed a statute identical to § 133, supra, for the proposition a part of the cause of action arose in Ottawa County because the agents committed certain acts there.

That case held the acts of a deputy administrator of unemployment compensation in Mahoning County were the acts of the administrator, even though the administrator officially resided in another county, and therefore held the cause against the administrator arose in Mahoning County. However, that case is distinguishable because there a statute authorized the administrator to create a branch office in Ma-honing County and specifically provided any order made by an authorized deputy was the order of the administrator. The court therefore held the cause of action arose in Mahoning County stating:

“ * * * it is clear that the administrator in the doing of the acts complained of is legally present in Mahoning County and hence the cause of action arose here. Every order made by his authorized deputies in this county is his order and made by him by operation of the statute right here in this county. * * * ” [emphasis supplied]

We conclude the present case is distinguishable because no similar statute is involved.

Application to assume original jurisdiction granted. Application for writ of prohibition granted.

DAVISON, C. J., WILLIAMS, V. C. J., and IRWIN and SIMMS, JJ., concur. LAVENDER, J., concurs by reason of stare decisis. HODGES, BARNES and DOOLIN, JJ., dissent.