Simpson v. Hill , 128 Okla. 269 ( 1927 )

While for reasons I shall herein set forth, I fully concur in the conclusion reached in the majority opinion, that this court cannot enjoin the members of the Legislature from meeting as a branch of the Legislature. I must dissent from that portion of the opinion which assumes to declare that they cannot meet except upon call of the Chief Executive, for reasons which I shall also give.

As I view and construe this record, considering the facts alleged in connection with the prayer of plaintiff in error, the relief sought is, or, at least, the ultimate effect of the relief sought would be, to enjoin the members of the House of Representatives from assembling or attempting to assemble themselves in the capacity of a branch of the Legislature upon their own call, their own initiative, the Governor having refused to call the Legislature into extraordinary session, for the purpose of inquiring into the affairs and conduct of various state officers, and to present articles of impeachment, if the facts justify such action. And as I construe the Constitution and statutes, injunctive relief in any form cannot be granted to plaintiff in error, giving its allegations and prayer the most liberal construction for the simple reason that the court is prohibited by the Constitution from granting such relief. Article 4, which embraces but one section, provides:

"The powers of the government of the state of Oklahoma shall be divided into three separate departments: The legislative, executive, and judicial; and except as provided in this Constitution, the legislative, executive, and judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."

To enjoin the Legislature or either house thereof from assembling for the purpose of doing what it deems to be its duty, would in my opinion constitute a flagrant violation of the foregoing constitutional provision. This provision means that each of the three great master wheels in the machinery of our scheme of government must revolve within its own prescribed orbit. Neither must rub against the other, lest there be intolerable friction. It is a wise and potent writ of prohibition directed by the people to the departments of government.

The judiciary, more than any other department of government, should be ever watchful and careful to not go beyond the constitutional limitations upon its powers. It being the only department of government endowed with authority to construe the law and pass finally upon the validity of acts of the other departments, it should, at all times, under all circumstances, sternly refuse to go beyond its intended powers.

Hence, in view of the foregoing provision and for the above reasons, we have no authority to grant the relief sought. The mere contention that the members of the House of Representatives might assemble themselves, without constitutional authority, and might attempt an illegal expenditure of public funds, does not authorize the judiciary to exceed its powers and interfere by injunction. Even the probability of such actions does not extend judicial authority. The Constitution presumes and the law presumes, and necessarily so that the Legislature will not exceed its authority, that it will not do illegal things; but, if it should do such things, if it should forget its oath and transcend its constitutional limitations, then the judiciary has express authority to declare such acts invalid and thereby protect the public from the effects thereof.

I do not deem it necessary to discuss this phase of the question further. I do not believe the correctness of this position can be successfully refuted, and therefore heartily concur in that portion of the majority opinion denying injunctive relief.

But I cannot agree that, under the issues presented by the pleadings and under the allegation of facts in the petition for injunction, this court clearly has jurisdiction to declare whether or not the Legislature has power to meet on its own motion.

Nor will I concede that the position I am forced to take is solely a technical one.

The law books abound with decisions wherein the judgments of trial courts have been reversed in the most important of matters simply because the judgment was without the pleadings. The Legislature has prescribed the procedure and the rules by which litigants may obtain their rights in the courts. These rules constitute the measure by which civil rights are to be determined, and civil rights cannot accurately and properly be determined except by the rules prescribed by law, one of the most fundamental of which is that a judgment must be within the terms of the pleadings. The facts alleged in this case are not sufficient, in my opinion, to warrant the court in declaring whether or not the Legislature could meet on its own motion. Being of this opinion, I am of the further opinion that the express holding in the majority opinion that the Legislature cannot convene except by call of the Governor is pure dictum. While dictum is frequently enlightening, yet it is never controlling and is rarely persuasive, and should not be indulged in except where it is necessary in the course of reasoning to a conclusion. Therefore I do not believe that the court should, under the condition of the pleadings herein, have judicially declared whether or not the Legislature has authority to convene on its own motion.

It is contended that there is a great public demand for the court to pass upon this question in this case. My answer to this is that the public has no right to demand that the courts disregard the rules prescribed by law.

And in the majority opinion a decision from the state of Wisconsin is quoted from and commented upon wherein the Supreme Court of that state confessedly yielded to the public demand and judicially passed upon a question that was not properly before it, but this is no reason why we should lay aside the measure prescribed by law for determining civil rights.

However, inasmuch as both parties appear to be willing for the court to declare the law, at least neither party appears to resist the court, doing so, and both parties appear to desire enlightenment upon the question, we do not consider it amiss to call attention of the members of the Legislature, and especially the defendants in error here, to the following provisions in section 3, art. 8, of the Constitution, to wit:

"The House of Representatives shall present all impeachments."

This does not say sitting as a board or court of inquiry for the purpose of impeachment, but simply says, "the House of Representatives shall present all impeachments."

And also call attention to section 4, Id., which provides that:

"When the Senate is sitting as a court of impeachment the senators shall be on oath or affirmation, impartially to try the party impeached."

And call attention to the further fact, for whatever it may be worth, that the House of Representatives is not required to take any additional oath, nor required to reorganize into a different body than that of the House of Representatives, and the clear inference that it may make its investigation and present articles of impeachment in its legislative capacity as such and in the regular course of its legislative duties, not as a court of inquiry, but as a House of Representatives.

Section 6, Id., provides that the Legislature shall pass such laws as are necessary for carrying into effect the provisions of the Constitution on impeachment, and by legislative act, effective March 12, 1915, art. 2, chap. 2, S. L. 1921, the Legislature made provision for carrying into effect the constitutional provision for impeachment.

Section 149, C. O. S. 1921, merely recopies section 3, art. 8, of the Constitution as a statutory provision, and contains the following:

"The House of Representatives shall present all impeachments."

Section 153, Id., contains the following:

"The articles of impeachment are the written accusation * * * drawn up and approved by the House of Representatives."

Section 156, Id., provides that when articles of impeachment are presented to the Senate, the Senate shall within 15 days organize as a court of impeachment, and makes further provision whereby the court of impeachment may discharge its duties. And section 161, Id., prescribes the oath which the Senate shall take before it becomes a court of impeachment. Section 1 art. 7, of the Constitution provides the judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, the Supreme Court, district courts, and other courts and boards, but nowhere, either in the Constitution or statute, is it expressly provided or remotely intimated that the House of Representatives constitutes any part of the court of impeachment. Neither is it anywhere expressly provided or remotely intimated, either by Constitution or statute, that the House of Representatives is required to act otherwise than as a House of Representatives in presenting articles of impeachment, or that it is required to take any additional oath other than that as a member of the House of Representatives, or is by express provision or any remote intimation inhibited from conducting an investigation and presenting articles of impeachment in the regular course of its legislative duties. In fact, there is no provision in either the Constitution or statutes which even impliedly gives the members of the House of Representatives authority to present articles of impeachment except in their constitutional capacity as members of the Legislature.

We call attention to these provisions for whatever benefit it may be to the members of the House of Representatives, and further call attention to the case of Farrelly v. Cole (Kan.) 56 P. 492, which is an able and very exhaustive opinion on the authority of the Legislature to convene in extraordinary session on its own motion.

On Rehearing.